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Time for a dispassionate, intelligent review of 86-43

By Staff | Dec 31, 2009

We must consider the four evolving events that have brought the island to our present situation, beginning with (1) the 2003 Clarion Report, moving on to (2) the Mimms Case, followed by (3) the role of the Sanibel Panning Commission and real estate interest, ending with (4) the upcoming vote to better define 86-43 by Sanibel’s City Council.

The Clarion Report:

In 2002, the city wisely hired Clarion Associates (of Durham, N.C., Denver, Co. and Fort Myers) to review The Sanibel Plan 1976 to advise the city regarding how Sanibel should best move forward on issues pertaining to appropriately sized single family housing development, given the island’s residential neighborhoods and subdivisions were already “significantly built-out.” Clarion, after lengthy and impressive study, issued a 44-page report in March of 2003.

The essence of that report was to offer options for best handling situations where a single family dwelling was “disproportionately too large for a particular neighborhood” and would thus “dominate nearby dwellings [in a manner] incongruous with the scale” to the surrounding established homes. Clarion’s goal was to make Sanibel’s existing regulations (Section 86-43) less subjective and “more specific and objective while addressing [the] compatibility of the proposed home.”

Clarion Associates presented the city with three different options that would better clarify 86-43. The Clarion planners made it clear that the present uncertainties of 86-43 would “encourage conflict.” On page 11 of the report, they wrote “The lack of objective standards sometimes leaves the property owner, citizens and city staff with different opinions about whether proposed single-family development or additions comply with Section 86-43. These differences of opinion result in conflict, which can only be resolved through negotiation, or a vote of the planning commission. In many instances, the conflict that occurs at the planning commission public hearings is not easily forgotten by anyone.”

Put in simple terms, the comprehensive Clarion Report told Sanibel they needed to better define 86-43 or they and their citizens would end up having big problems that would be unfair, expensive, and conflictual to all involved. The city accepted and understood the report but did nothing to clarify 86-43. The Planning Commission didn’t act on the report. The City Council didn’t act on the report.

The Mimms Case:

All the sad and bad things the Clarion Association told the city would happen, if 86-43 was not better defined, happened in the Mimms’ case.

Mr. and Mrs. David Mimms wanted to build an unusually large house in Chateau Sur Mer, one of Sanibel’s oldest and most established neighborhoods. The Mimms’ proposed house would have been considerably larger than any of the established surrounding homes within 300 feet of the Mimms’ property. The majority of the neighborhood, aided by nearby neighbors in the adjoining subdivision of Tradewinds, took their concerns to the Planning Commission and upon the advise of the Planning Commission hired two expensive expert witnesses – one a lawyer and the other an architect – to represent them.

After months of heated debate, the Planning Commission refused the Mimms’ application.

The Planning Commission:

Given the conflict that evolved (i.e. the tremendous cost to the Mimms as well as to the citizens of Sanibel in regards to paying the ever increasing city cost, not to forget the thousands and thousands of dollars individual citizens privately donated to allow legal and architectural representation to those in the Chateau Sur Mer neighborhood who realized the proposed Mimms’ house design was not in balance and harmony with the neighborhood) – given those types of evolving conflicts, the Planning Commission dedicate themselves to better define 86-43, which required working out a lot of sticky definition details; definition details that are extremely important when the Sanibel Planning Department and Commission are faced with complicated proposals such as the Mimms.

The planning commissioners kept their word. They worked diligently for eighteen months to better defined 86-43. During this time, certain members of the Sanibel real estate community argued forcefully against making any changes to 86-43. Tempers rose and – true to the Clarion Associates future evaluation – “the conflict that occur[ed]… [will not be] easily forgotten by anyone.” In the end, the planning commissioners voted 6-1 to send the commissions recommended definitive solutions to better 86-43 to the City Council.

There are those who believe, ourselves included, that the planning commissioners recommendation will, in fact, provide positive assistance to island brokers – and the agents who represent them – because a better clarified 86-43 will provide brokers and agents needed protection in terms of their disclosure responsibility regarding any thing that may be germane to the value of the properties they represent, especially if such disclosures are common knowledge. EG given 86-43 has already faced court challenge it is paramount that brokers and realtors inform their clients about the limitations that can result due to the present ambiguities in 86-43, especially as they relate to the difficulties that can arise if a client choses to build a much larger house in an older, established neighborhood.

The City Council:

Sanibel’s five City Council members will vote to accept or reject the seven member planning commissions recommendation on Tuesday, Jan. 5, three months short of seven years after the Clarian Report suggested this issue needed to be resolved.


It would serve our council members well to commit to a slow, detailed reading of the 44 pages of Sanibel’s Clarion Report 2003 before voting on this issue. Clarion Associates pointed out that in the five years prior to writing the report (1999-2003), 20 building applications required a detailed architectural evaluation by the planning department. Clarion stated those reviews “generally take about three to four months, but may take up to 10 months.” Of those 20, five were moved on to be reviewed by the planning commissioners and “those reviews… take over a year or longer to complete.” Applications that demand long reviews end up being extremely costly to Sanibel taxpayers.

The present and continuing uncertainly of 86-43, due to it’s lack of specific and objective standards, is what made the Mimms case of many years, from beginning to end, inevitable. The Clarion report prophetically stated “Because it lacks specific and objective standards… Section 86-43 will continue to create a significant degree of uncertainty on the part of property owners, citizens, city staff and review board members. This uncertainty is expensive… It has also proven time consuming, lengthy, and difficult for city staff to administer.”

We would add, the uncertainties caused by 86-43, have set back particular neighborhood’s sense of well-being and been destructive to longstanding friendships, all of which will be avoidable in the future if the City Council acts responsibly.

Sanibel’s Planning Department and Planning Commissioners have now worked for 18 months to better define 86-43. They have done their best with a difficult situation and Jim Jordan, head of the planning department, has walked every step of the way with the planning commission to assist them in defining better guidelines to better administer 86-43. He has testified that the positive changes being advocated by the planning commission will be helpful to the planning department.

Our community will be best served if the City Council votes to uphold the planning commission’s 86-43 recommendations, in detail. It is important for the City Council to realize that the divisiveness that has resulted within our community over 86-43 would never have occurred had elected city leaders acted on the advise of the Clarion Report nearly seven years ago.

To vote yes on the Sanibel Planning Commission’s recommendation will offer Sanibel’s neighborhoods, property owners, citizens, city staffs and volunteer review board members a better opportunity to establish more peaceful resolutions in the future.