by SC Publisher Shannen Hayes
A decision by residents Chris and Lisa Heidrick to build a dock behind their home on Isabel Drive produced a weighty debate over property rights, the law, the environment, the process, and being right or wrong on Monday at the Sanibel City Council meeting.
The Heidricks had filed a petition for relief through the Florida Land Use and Environmental Dispute Resolution ACT, after council voted 4-1 to overturn the Planning Commission’s approval in a March appeal hearing. Special Magistrate Robert Berntsson recommended the city council reverse its decision and uphold the commission’s determination.
“The essence of that recommendation is there was substantial evidence in the record to support the planning commission’s decision to approve the dock and the staff report showed the seven variance standards had been met,” said City Attorney John Agnew. “Because the magistrate made that finding, he found the city went beyond its scope of limited review.”
Councilwoman Holly Smith said she believed the council was within its right to reverse the planning commission’s decision and two of the seven variance standards had not been met at that time by pointing out the Heidricks had submitted revised plans during the FLUEDRA process. She also said Berntsson failed to understand and interpret the authority of the council in the appeal of the planning commission’s decision.
“I believe we have a process and that process works,” said Smith. “Reversing my decision would be saying I did not believe my vote was the right vote and I stand behind my vote. I’m not able to reverse that decision and history would show my decision was the wrong one.”
Vice Mayor Mick Denham and Councilman Richard Johnson also stood behind their original votes to overturn the commission’s approval. “It was the right decision to make given the circumstances that we were facing and the information we had been presented with,” said Johnson.
Councilman Jason Maughan was the single vote against overturning the commission’s decision in March. He again recognized the close vote of 4-3 by the commissioners, which indicated to him a serious discussion among them and a tough decision for them, but a decision was made. He furthered his position by expressing his belief in property rights. “The rights at issue are too important to curtail in the face of double you’re wrong,” said Maughan.
The Sanibel Captiva Conservation Foundation has opposed the dock since the start based on the endangerment of the seagrass habitat in that area and its CEO Ryan Orgera said the magistrate’s decision “should be patently rejected.”
“You can not isolate an environmental issue as a source of property rights infringement then accept all other qualifications to property rights as acceptable,” said Orgera. He likened it to a property owner operating a tattoo parlor in their garage, which would be widely unaccepted based on zoning, parking and being inharmonious with the neighborhood.
“No one argues about those property rights,” Orgera said. He contended that when the issue is environmental degradation it should not be reduced to an oversimplified property rights argument. “The issue before you is not a philosophical debate on property rights. It is a question of upholding the founding vision of the city,” he said.
Orgera further argued the planning commission’s decision was based on the city staff report and the applicant’s persistence and plan revisions were built towards getting approval based on repetition. Not all roads should lead to yes or “variances become seen as an ode to the petitioners,” he said. “SCCF is not blindly opposed to docks. If this dock were in a canal with no seagrass or no concerns about siltation, SCCF would not have weighed in,” he said.
Heidrick asserted he has “always wanted to protect the environment,” but there is nothing in the Land Development Code prohibiting the building of a dock over seagrass. And he “depended” on the Sanibel Plan and Land Development Code to build a dock when he purchased his property.
Sanibel resident Larry Schopp, who has extensive knowledge of the Sanibel Plan and Land Development Code, pointed out that nearly every planning commission agenda has a variance application for a dock to extend the waterward limitation of the Sanibel Plan, typically to protect mangroves, and are granted.
“This application is not that different. It deals with seagrass instead of mangroves and segrass has no special status under the LDC,” said Schopp. “The standard is the same – you have to minimize potential damage to natural resources. The planning commission found they did that and (the application) met all of the requirements for a variance.”
“The council’s right to reverse the planning commission’s decisions is not unlimited,” Schopp added. “You’re on very thin ice here. I would pay much more deference to the applicant than I think you going to pay. I don’t think he should be sent back to planning commission to file a new application. I think he should be given a lot of deference for what he has gone through and the compromise proposals he has put forth through the special magistrate.”
Mayor Kevin Ruane, who was among the four council members in favor of overturning the commission’s decision and stood behind his vote, gave weight to Schopp’s point of view. He said if the modified plans had been presented initially, he “might have voted differently.” But now, he preferred the planning commission review the latest plans through an expedited process – not filling a new application and waiving the fees.
In addition, Ruane queried Heidrick on his intentions. Heidrick said the simple answer is he’s not willing to “abdicate his property rights.” And when it comes to the environmental issues, Heidrick reiterated that “Sanibel laws do not prohibit construction of a dock over seagrass.”
“This property is entitled to have a dock,” he said. “I have every confidence that as far as I have to go in the courts to get that kind of a ruling I’ll go to. I don’t want to do that. The whole idea of the FLUEDRA process was to reach out and try to find mediation.”
Ruane followed by saying it was the council’s desire to give Heidrick an opportunity and not charge him any fees. “And take away whatever risk we are exposed to by remanding (the application) back to the planning commission,” he said. “It has given us some type of insurance by not totally rejecting it.”
Smith said she still stood by the process and for her “principal” made a motion to reject Special Magistrate Berntsson’s recommendation, affirm the council’s original resolution overturning the commission’s decision and allow for an expedited application process without any fees. It failed to get a second.
Maughan made a motion to modify Berntsson’s recommendation by rescinding the council’s resolution overturning the commission’s decision and passing a new resolution to remand the application back to planning commission for consideration of the modified plans. But the motion was withdrawn because it erased the council’s original decision.
Smith again made her original motion to reject Berntsson’s recommendation, affirm the council’s resolution overturning the commission’s decision and allow for an expedited application process without any fees. After Denham seconded the motion, Schopp made a final comment to the council.
“I’m sorry to have to say I think you are all, with one exception, more concerned with saving face than with doing the right thing. You know what the right thing to do is and you’re just terribly concerned that somebody will say you reversed yourselves. Well, people often reverse themselves when they are wrong and you’ve been wrong in this case. It’s as simple as that. Do the right thing,” he said.
Smith said it was “not about saving face” and remained steadfast in that her original decision was the right one and proven when there were additional plans. “I’m sorry it is not the answer you want to hear.” Her motion passed by a vote of 3-2 with Maughan and Ruane voting against it.