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Council rejects magistrate’s recommendations on denied dock

Allows homeowner to file new application for project

By MEGHAN BRADBURY / news@breezenewspapers.com - | Sep 28, 2020

After a lengthy discussion with extensive public comment, the Sanibel City Council voted 3-2 to reject the special magistrate’s nonbinding decision and upheld the council’s resolution regarding a dock for applicant Chris Heidrick.

At the council’s monthly meeting on Sept. 14, Councilmember Holly Smith made the motion to reject the recommendation from the special magistrate, but allow the applicant to go forward with the application of a new dock with fees waived, while doing it in an expeditious manner.

Councilmembers Jason Maughan and Mayor Kevin Ruane objected the motion.

The 20-25 resolution reversed on appeal of the Sanibel Planning Commission’s approval of a variance. The variance was for a request for the construction of a new dock with a boat lift to extend waterward further than the maximum permitted waterward extension limit. The lot is located at 1203 Isabel Drive.

City Attorney John Agnew said that after council passed its resolution in May, which reversed the dock approval made by the commission, there was a petition filed for relief in accordance to the Florida Land Use Environment Dispute Resolution Act (FLUEDRA).

“That FLUEDRA process required an appointment of a special magistrate and ultimately a hearing,” he said, adding that it occurred on July 30 in city hall chambers. “Subsequent to the hearing, the special magistrate issued his recommendation. That recommendation came out Aug. 5. The essence of that recommendation was that there was competence of substantial evidence in the record to support the planning commission decision to approve that dock application because the staff report found the seven variance standards had been met.”

The special magistrate also made the finding that the city was beyond the scope of limited review of overturning the commission decision and the decision was unreasonable and unfairly burdened the Heidrick’s property.

To remedy the issue, there were two recommended actions. Agnew said it could repeal city council Resolution 20-25, which reversed the commission’s resolution, and then either affirm the decision and allow the dock to be built as had been approved by the commission. Or the council could uphold the commission’s decision but modify the dock plan for approval that Heidrick had proposed through the FLUEDRA proceeding.

Agnew said they are nonbinding recommendations, so the council can make a decision of accepting the recommendation of special magistrate or rejecting it.

He said there was also a proposal for the construction of the dock that came in from the applicant after the recommendation. A similar dock, Agnew said, but one foot further out waterward extension and five foot smaller terminal platform.

Smith explained that when she looks at the magistrate’s decision she is drawn to a statement that the magistrate believes “we overstepped our powers in reversing that decision.”

“My determination was based on that standard six, and standard seven. I think it is very clear that standard seven has proven that with these three new changes that standard seven was not met. It’s my understanding that we must meet all three fully. I don’t fault the planning commission, I think they did the best job. When the appeal was made it is the duty of council to look at that and go through that process, rehear it, and I think we did very fairly,” she said. “I would be very concerned by us not, by me reversing my decision would be saying I did not believe in my decision, my vote was not the right vote. I stand behind my vote.”

Councilmember Richard Johnson said he too stands behind his decision, that it was the right decision to make. He said he furthermore agrees that it is obvious because of the changes and information with dock layout, the applicant did not provide the commission with the least invasive plan for their variance request.

Councilmember Mick Denham said he also supports the decision of upholding the decision.

“This dock is in a very special location. The applicant has been incredibly persistent. It started with requesting a very large, very unfair project and frequent visits with the Planning Department and the planning commission hoping to get approval by less variance,” he said.

Denham said whatever variances they have, the environment is still present.

Maughan said they went to a special magistrate hearing where they were told as a matter of record that they were wrong in what they did.

“I take that extremely seriously. I think what people don’t understand with a special magistrate hearing is that is a judge. The rights of the issue is too important to curtail in the face of double you are wrong and that is what we are facing here. The net affect inadvertently has asserted the power and authority of the planning commission. I believe the special magistrate’s opinion should be adopted by this council and rescind 20-25 whether I like it or not I fear for the precedent that we are setting,” he said.

Ruane said he is certainly confident in the decision he made and wants to uphold that, but he is more than open-minded to the revision and having Natural Resources, the Planning Department and the commission weigh in and give him a much more comprehensive report.

“Our choices seem like it is contradictory to some degree if I don’t affirm my original decision. I certainly don’t want to hamper the applicant with any additional fees, or any process because I think it is their right and responsibility to go back and try to do something. I want to find a pathway that is the easiest, but I just struggle mentally overturning a decision I made because I feel pretty comfortable in the decision. The reason I would overturn that listening to you is that I am open minded to some type of revision,” he said.

Smith again said if she rescinds her decision it is telling the community that their process does not work.

Agnew said he does not agree with the magistrate’s recommendation and report, per say, but certainly there are valid points. He said the FLUEDRA process is intended to reach some kind of comprise and work the system a little differently to get to a compromise position.

Maughan said rescission just means that this did not happen and you are going back to the start of whatever you were trying to do and proceeding down that path.

“It’s not anybody’s right, or anybody’s wrong, it’s just that the 1, 2, 3s, went 5, 1, 2 and nobody did anything wrong, it just ended up in such a way that what we attempted to do was never commenced by a certain nature. So you would never be saying to yourself oh man I was wrong I should have done this. You are saying no what happened didn’t actually happen under the law and how we run our process here and this has to be run again from the start because it never actually happened to begin with,” he said. “It’s specifically not saying overturning, it’s just saying we are going back to step one.”

Denham said he is not willing to vote against what he said before and that his position is still the same.

Agnew said reasonable minds can disagree. He said he does believe the special magistrate missed the proper interpretation of what council authority is.

“I will say the FLUEDRA process envisions the magistrate’s view of a number of different issues in determining whether or not something is unfairly burdens a property or is unreasonable. There are eight different factors and it doesn’t address any of them,” Agnew said.

He said rights are subject to reasonable government restrictions and those are in the form of the city’s Land Development Code that provides a certain waterward extension standard.

“A request for a variance that would have been the most significant of waterward variance in the history of Sanibel for an interior canal,” Agnew said. “That is what the truth of the matter is. It’s not precedent setting, but it is interesting from a data standpoint knowing that 54 and a half foot extension that was 24 and a half feet beyond the maximum waterward extension would have been the most significant variance ever granted in the history of the city.”

Heidrick was asked to speak before the council.

He said his application was one taken to protect Sanibel’s natural resources. He said the neighbors who rejected already have docks and his home is the only one in the neighborhood that does not.

“It has the original concrete pad that all of the rest have and it all has been improved. The arguments that have been made are simply not fair and not supported by the land development code. The land development codes and the Sanibel Plan are the laws I relied on when I purchased the property,” Heidrick said.

He went on to say that their hope was to find mediation through the FLUEDRA process with a much faster result.

“Nobody wishes more than me the plan, the most recent plan I submitted, was the first one we came up with,” he said.

Heidrick added that the positive part about the FLUEDRA process was it allowed a further discussion with the city and they uncovered a better plan.

“The reason why I submitted a plan even after the special magistrate found a recommendation in my favor was because it was the right thing to do. We were able to find yet a better improvement that we discussed most recently in remediation,” he said.

The most recent plan reduces waterward extension, it reduces the area of the dock to be consistent with all of the other docks in the area, open decking to provide more protection to sea grass and it reduces the lift capacity to 24,000 pounds, Heidrick told the council.

“I question the efficiency and the logic to go back before the planning commission with a new application when the changes they made are all changes that are reacting to what I heard from council the last time this matter was here,” he said. “It reduces all the impacts that were cited.”

Heidrick said what he is looking for is the most efficient use of everyone’s resources to get to what he believes is the right result.

Ruane asked him to explain his intention.

Heidrick said he is not willing to advocate his property rights. He said he bought a property under the laws of Sanibel and the state and the laws of Sanibel do not prohibit the building of a dock over seagrass.

A question was then asked of the council of which kind of dock he can go forth with because the property is entitled to a dock. Heidrick said the further the dock goes out, the less impact it has on seagrass.

“That question needs to be answered before I proceed,” he said.

After hearing Heidrick’s comments, Ruane said it is of his opinion that they take the plan before the planning commission without having to refile.

“If there is any way we can work together to resolve this instead of battling one another that is my first objective,” Heidrick said. “The work is done and the revisions aren’t that great we couldn’t be ready for the next planning commission.”