by SC Reporter Emilie Alfino
Sanibel resident Arlene Dillon represented 45 citizens who were formally appealing a building permit for a single-family home at 1305 Seaspray Lane based on what they believe are errors in judgment by the floodplain manager’s review.
As there is no specific provision allowing for an appeal of an issued building permit, the group turned to Section 94 of the Sanibel Land Development Code – Floods. It states that “the Planning Commission shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the administration and enforcement of this chapter.”
“I want to make sure everyone listening online and all of you in this room understand that this appeal is not about asking to stop new construction of a house on Sanibel,” Dillon emphasized. “It is about how you build a home in a wetland resiliently. We talk about resiliency in every meeting since Hurricane Ian, and now we have the opportunity to see those words put into practice.”
The property in question is largely wetland and covered with water most of the year, with rain events causing water to inundate neighbors’ property.
The appellants are asking the Planning Commission to remand the issue back to the floodplain administrator for additional review and/or reconsideration and for an Environmental Assessment Report. They want a stay of the building permit and a stop work order. The city did place the building permit on hold and said the work to date on the property is within the scope of the issued building permit and consists only of sitework, including placement of fill for the house pad.
The formal appeal letter states that the floodplain administrator (City Manager Dana Souza or his designee, in this case Building Director Craig Mole’, who then used a contracted floodplain administrator) may “grant or deny development permit applications and make recommendations to the Sanibel Planning Commission. The floodplain administrator should interpret flood hazard area boundaries.”
It is the next language in the formal appeal letter that raised a sticky point; that is, it appealed the interpretation of the Open Body of Water boundaries. The city’s position was that (1) there is no provision for appeal of an already granted building permit, and (2) it is not the floodplain administrator who determines Open Body of Water boundaries; it is the Natural Resources Department. It was City Staff’s recommendation that the Planning Commission uphold the floodplain administrator’s decision with respect to the building permit for 1305 Seaspray Lane.
There followed a motion to that effect, which resulted in a tie (Ken Colter recused), necessitating a second motion.
It was Dillon’s impassioned and thorough presentation that seemed to give the Commissioners pause. She laid out all the provisions of Section 94 that would support her position that the building permit should be remanded.
In addition to photographs over a five-year period showing the properties inundated with water at different times of the year, Dillon presented graphic illustrations of the flooding problems, including surveys.
Section 94 states, in part, that “The floodplain administrator is authorized to suspend or revoke a floodplain development permit or approval if the permit was issued in error, on the basis of incorrect, inaccurate or incomplete information, or in violation of this chapter or any other ordinance, regulation or requirement of this community.”
Dillon asked the Commissioners: “Put yourself in our shoes. If you experienced water intrusion from your next-door neighbor’s property, and then watched water accumulate on that property year after year, you would be asking yourselves the same question: Where will the water go when that property is developed?”
Dillon also contended that massive amounts of fill have been brought in to 1305 Seaspray Lane, further endangering her and neighbors’ property.
After public comment, all but three in support of Dillon’s application, the Planning Commissioners discussed the matter. The Commissioners found it unacceptable to dismiss the appeal based on “a technicality”; that is, mistakenly using the term “open body of water.” It was more important, they felt, to try to address the underlying water problems laid out in Dillon’s presentation.
A motion was unanimously approved (with Commissioner Ken Colter recused) to send the matter back to the flood plain administrator to review items in Land Development Code 94-71 to explain (1), (3), and (4). They are:
• Delineation of flood hazard areas, floodway boundaries, and flood zone(s).
• Location, extent, amount, and proposed final grades of any filling, grading, or excavation.
• Where the placement of fill is proposed, the amount, type and source of fill material; compaction specifications, a description of the intended purpose of the fill area; and evidence that the proposed fill areas are the minimum necessary to achieve the intended purpose.
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