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Boat dock prohibition in BBZ remains unchanged

By Staff | Oct 20, 2010

Following the second public hearing on the proposed ordinance amendment which would have lifted the restriction on allowing boat docks to be constructed on properties located within the Bay Beach Zone (BBZ), which featured speakers both for and against making changes to the 17-year-old prohibition, members of the City Council decided to leave it alone.

By a 4-0 vote, with councilman Jim Jennings absent, city leaders denied the proposed ordinance, which would have allowed up to 59 boat docks to be added along Sanibel’s shoreline bordering San Carlos Bay.

“We are not lawyers and we are not judges. We are stewards,” councilman Peter Pappas told the crowd of more than 60 residents gathered at MacKenzie Hall on Tuesday morning. “Are we not a better Florida than what’s out there?”

Back in May, the City Council had requested that the Planning Commission look into making alterations to the ordinance which prohibits docks, boat davits, boat lifts and mooring pilings within the zone, which extends along the waters of San Carlos Bay and Tarpon Bay west of the Lighthouse to the end of Woodring’s Point. The ban was enacted in order to protect environmentally-sensitive sea grasses.

Last month, commissioners passed a resolution which stated that the proposed amended ordinance was “inconsistent with the Sanibel Plan.”

To begin the meeting, City Attorney Ken Cuyler delivered a brief synopsis of the evolution of the boat dock restriction ordinance amendment process. He called the decision of the City Council in 1993 to put the ban in place a “valid municipal purpose.”

Dr. Rob Loflin, director of the city’s Department of Natural Resources, and Jimmy Jordan, director of the Planning Department, also shared information gathered by their respective staffs, as requested by the council on Oct. 5.

That data and information included a list of all BBZ lots (with property purchase dates), a list of BBZ lots with currently existing docks (with date of lot purchase and date existing dock was permitted), a list of pre-ordinance BBZ lot purchases without currently existing dock (with date of lot purchase and date dock within 1,000 feet was permitted), a map depicting pre-ordinance BBZ lots with date of purchase and depicting 1,000 foot separation as well as a report from the Department of Natural Resources addressing the condition of sea grasses in the vicinity of the BBZ.

According to Loflin, whose staff recently performed a snorkel survey of the area in question, 9.5 acres of potential sea grass bed habitat exists within the BBZ. He also stated that currently, 74 percent of that area has sea grasses present and, if boat docks were to be permitted, approximately 20 percent — or 1.88 acres — would be impacted.

“The biggest change I saw was less sea grasses east of the causeway,” said Loflin, who added that he was not confident that the technology exists to construct boat docks that would not impact sea grasses.

Jordan also defended the city’s decision to place a boat dock, used by the Sanibel Police Department for public safety purposes and emergencies, within the affected area, noting that the pre-approval survey found no evidence of sea grasses along that portion of shoreline.

Opening the hearing to public comment, more than a dozen residents, business owners and attorney Steve Hartsell — representing eight property owners within the BBZ — aired their concerns over what changing the long-standing ordinance might do.

Karen Storjohann, who spoke of the value of preserving the island’s natural habitat, said that people should try to minimize their footprint, not be quick to add boat docks along every potential property.

“That is not what we’re about,” she added. “And that’s not what we’ve been about since 1974.”

For the first time since the council and commission began debating the issue, several residents spoke out in favor of rescinding the prohibition. Bud Simmons said that the council had an opportunity to “correct a mistake” while Jim Guyer suggested that boat docks would have a “minimum impact, if any, on our ecosystem.”

However, the majority of audience members told the council they were against lifting the ban.

“It would be bad thinking and bad politics to back down now,” said Alex Fleischer, noting that in the past, the Sanibel Plan has been challenged but never defeated. “Search your hearts and your conscious and I’m sure you’ll do the right thing.”

Barbara Cooley, president of the Committee Of The Islands, implored the council to defend the Sanibel Plan. “This is an opportunity to show who we area and what we are,” she added.

Fellow COTI member Mike Gillespie stated that the likelihood that the 1993 prohibition was an “improper taking” wasn’t great.

“We’re not here to judge if this was an improper taking,” Gillespie said, noting that the citizens should allow that issue to be decided in court.

During his turn at the microphone, Hartsell urged the council that his clients were only seeking equitable treatment on the matter, and that it was unfair to suggest that they do not care about Sanibel’s environment. He also challenged the city’s decision to place the police dock within the BBZ, noting that they could have — but did not — comply with the same Land Development Code standards other citizens would have to.

In addition, Hartsell stated that Loflin’s report to the council on the current sea grass conditions within the BBZ wasn’t an “intellectually honest comparison,” noting that his data included information from only 9.5 acres. The impact on sea grasses, he added, would be “insignificant.”

“This is a chance to right a wrong that came in 1993,” Hartsell told the council.

Later, Loflin defended his statistics and information contained within his report. He stated that he was “disappointed” that Hartsell would use a “personal attack” in order to defend his clients’ position.

After Mayor Kevin Ruane asked for the comments of his fellow council members, Marty Harrity stood up, walked over to a book shelf, picked up a hardcover edition of the Sanibel Plan, and placed it on the desk in front of him.

“People have told me that they came to Sanibel because of this book, but I came to Sanibel just because I liked it,” said Harrity. “Francis Bailey used to say that sometimes, you have to do the right thing… and that’s what I’m going to do.”

Vice Mayor Mick Denham, who called Hartsell’s allegation that Loflin’s report was dishonest in any way an “affront,” told the audience that he an his fellow councilman were elected — in large part — to defend the Sanibel Plan.

“To me, it’s a matter of principle and it’s a matter of trust,” said Denham, adding that the city is ready to settle the issue in the courts. “We have faced down more serious lawsuits in the past and I’m prepared to face this one.”

Ruane, who noted that he struggled at times with the matter over whether property rights were taken illegally, offered that he thought the city has handled the issue cordially.

“The facts speak for themselves,” he added.

Following their unanimous vote, Pappas acknowledged the work on the report prepared by Loflin, James Evans and Holly Downing of the city’s Department of Natural Resources, which assisted the council in rendering their decision.