Owner of Billy’s Bikes Loses Appeal

by SC Reporter Emilie Alfino

The Sanibel City Council heard an appeal of the Planning Commission’s approval of applications filed on behalf of 2407 Periwinkle Sanibel LLC for conditional use permits allowing bicycle rentals and a formula retail store (Unlimited Biking) to operate in unit 3 of the Islander Center, 2407 Periwinkle Way.

The Planning Commission had approved the applications by a 6-0 vote, with Commissioner Sergeant recused. Stephen Brown Jr., owner of Billy’s Bikes, and a participant in the Planning Commission hearing, filed the appeal.

Brown wrote in his appeal documents, “I am filing this appeal of the Planning and Zoning Commission’s February 24th meeting’s Conditional Use Permit for Unlimited Biking for the following two reasons:

“1. Safety Concerns. Unlimited Biking applied for an almost identical CUP at the same location five years ago. The principal reason this was denied by a vote of 7-0 was over the safe operations of a bike rental at that location. There was very little mentioned about upgrades to the site that would alleviate the safety concerns. In fact, the 70 bikes requested in 2021 are now a request for 100 bikes. In looking for administrative consistency, I’m concerned this application went from a 7-0 denial to a 6-0 approval with little to no positive changes in addressing the safety concerns in renting both bikes and e-bikes.

“2. Intensity of Use – Under the Land Development Code, ‘the proposed development intensity of the formula retail store shall not exceed that of other low and moderate intensity retail uses that are permitted on the site of the formula retail store.’ A bike rental business does not have the same intensity of use and customer flow as the mix of businesses currently planned or located at 2407 Periwinkle Way. For this reason, a multinational franchise should not be allowed within this space per the city code. While I truly respect the biking behemoth that Mr. Ugdur (Unlimited Biking owner) has created, I feel this may not be the next franchise and precedent-setting entity Sanibel wants to approve under a Conditional Use Permit.

‘I have nothing but respect for both the Planning Department and the members of the Sanibel Planning Commission. I do, however, feel this decision was erroneous, and the reason I have chosen to exercise my right as a resident of Sanibel to appeal their approval. I will fully support the city’s decision regardless of the outcome and only want our island and its unmatched sense of community to thrive. Sincerely, Stephen Brown Jr.’”

The City Council’s consideration on appeal was limited to whether the Planning Commission had properly interpreted and applied the provisions of the Land Development Code, based upon the application and evidence presented to the Planning Commission.

Thus, the City Council’s appellate review of a Planning Commission decision is not a new hearing, in the sense that the City Council will not take new testimony or evidence regarding the applications. Rather, the City Council will base its decision on the appellate record (the record established before the Planning Commission) and the parties’ arguments regarding that record.

The City Council is not prohibited from independently weighing, interpreting, and applying that record evidence as it sees fit, without deference to the Planning Commission’s weight, interpretation, and application of the evidence; however, only “competent, substantial evidence” should be relied upon in making a decision.

On any appeal, the City Council shall have authority to uphold, reverse, or modify the Planning Commission’s decision; or to remand the application to the Planning Commission for re-hearing, a new hearing, or for the consideration of additional evidence. In reversing or modifying the Planning Commission’s decision and approving an application, the City Council shall have the same authority as the Planning Commission to impose conditions on such approval.

City Council voted unanimously to uphold the Planning Commission’s decision and deny the appeal. Not wanting competition, which a Council member asked about, is not an appropriate factor for consideration, City Attorney John Agnew said.

As a reminder to residents, “formula restaurants” are not permitted on Sanibel. However, “formula retail” is permitted up to a maximum island-wide amount of 60,000 square feet.