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Commissioners reject boat dock resolution

By Staff | Sep 29, 2010

By changing a single word contained within a resolution, members of the Planning Commission ultimately rejected the proposed ordinance which would endorse removing the prohibition on boat docks in the Bay Beach Zone (BBZ).

During Tuesday’s meeting, planners took another look at the amendments which were recommended on Sept. 16 to the city’s 17-year-old Land Development Code restriction on boat docks located within the BBZ, which extends along the waters of San Carlos Bay and Tarpon Bay west of the Lighthouse to the end of Woodring’s Point.

At that meeting, the commission voted 4-3 in favor of passing the amended ordinance along to City Council, with panelists Dr. Phillip Marks, Tom Krekel and Paul Reynolds opposing any changes.

On Tuesday, planners were asked to address two points, including the recommended length of docks which would be allowed if the restrictions were removed and clarification that the commission may have considered how the amended document adhered — or did not adhere — to the Sanibel Plan.

"The Planning Commission shall make reference to the Sanibel Plan to determine if the proposed amendment to the land development regulations is consistent with the intent and purpose of the Sanibel Plan," Director of Planning Jimmy Jordan read to the commission from his three-page memorandum. "If the Planning Commission determines that a proposed amendment is inconsistent with the Sanibel Plan or its intent and purpose, the Planning Commission may, nevertheless, recommend approval of the proposed amendment, along with a corresponding amendment to the Sanibel Plan, if the Planning Commission determines that the proposed amendment should be approved based upon a consideration of all the factors specified in subsection 2 of this section."

Subsection 2 includes seven individual factors, including encouraging the most appropriate use of land and city resources, consistent with the public interest, whether it would adversely affect the character and stability of the present and future land use and development of the community, and whether it would preserve, promote, protect and improve the public health, safety and general welfare of the community.

Reynolds asked City Attorney Ken Cuyler, "Could the Planning Commission pass this along to City Council if it is inconsistent with the Sanibel Plan?"

Cuyler responded that they could, although the document would likely undergo "some degree of interpretation."

"Nobody knows what City Council is going to do with this," Cuyler added.

Marks pointed out that since the prohibition was enacted in 1993, not a single lawsuit has ever been filed against the city, challenging the legality of the local restriction of boat docks within the BBZ.

"This is not even a legal issue yet," he said. "I think we have to consider what these docks will do to our nearshore sea grasses."

Cuyler responded that the commission could pass the proposed resolution, which stated that they had considered the suggested amendments as they related to the Sanibel Plan, make additional alterations as desired or reject the proposal entirely.

"I want to put (City Council) in a position to make a legal decision that can be defended, if it ever comes to that," said Cuyler.

After some additional comments from commissioners Holly Smith, Chuck Ketteman and Krekel, Reynolds added, "I appreciate that some of you are struggling with this issue, but this hasn’t been a struggle for me."

Steve Hartsell, an attorney representing seven property owners located within the BBZ, suggested that boat docks could be located on San Carlos Bay without doing any significant damage to sea grasses. Both Reynolds and Krekel challenged Hartsell’s opinion and expertise on sea grasses, noting that all of the experts who offered testimony on the issue on behalf of the city — Dr. Rob Loflin as well as Rae Ann Wessel and Eric Lindblad of the Sanibel-Captiva Conservation Foundation — stated that the presence of boat docks would be harmful to the sea grass beds.

"Your expert installs boat docks for a living," said Reynolds, who made a motion to pass the ordinance along to City Council.

"It’s a moot point," he added. "City Council is going to do what City Council is going to do."

Commission chairman Michael Valiquette suggested that the proposed resolution eliminate language related to recommending that the amended document was consistent with the Sanibel Plan in two sections. A 4-3 vote against the measure ended Valiquette’s motion to approve.

However, Krekel offered a second motion on the resolution, changing the word "consistent" with "inconsistent." Planners voted 5-2 to approve the measure, with Smith and Ketteman dissenting.

"In my seven years on this commission, this is one of the hardest decisions I’ve ever had to vote on," said Valiquette.

City Council is anticipated to debate the issue at their Oct. 5 meeting, which will begin at 9 a.m. at MacKenzie Hall, located at 800 Dunlop Road.