Proposed Build Back Ordinance-Explanation

Background:
There are many residential and multi-family structures that were built on Sanibel Island before and after the City's incorporation that were lawful when built, but due to subsequent county, city, state or federal regulations, would not be permitted today at the same density, intensity or location. These are referred to as non-conforming structures.

In a few cases, the structures are non-conforming because they are devoted to a use no longer permitted in the district in which they are located. In most cases it is the structure, not the use, that is no longer permitted.

Structures may be non-conforming due to one or more of several regulations. Perhaps the most common and the most serious non-conformity is caused by federal, state and local flood regulations. All of the City of Sanibel is in the Coastal High Hazard Area. Virtually all new or substantially reconstructed structures in Sanibel must be elevated above the base flood elevation. Many structures were built before adoption of the flood regulations. If substantially destroyed (more than 50% of the value of the structure) the structure must be re-built above the base flood elevation (or otherwise flood-proofed).

Rebuilding above the base flood elevation to eliminate the non-conformity can usually be done in a single-family or duplex situation. However, there are many condominiums, especially along the Gulf Beaches, which have units on the ground floor and are built to or nearly to, the maximum building height now allowed in the City. If height relief is not available in a disaster, dwelling units will be lost. The structure simply cannot be rebuilt to the same number of units within the 3-dimensional envelope that is permitted.

Another common non-conformity is the Coastal Construction Setback Line (CCSL). Much of the coastal development in Sanibel is seaward of the 1974 CCSL. In 1992, the new Coastal Construction Control Line (CCCL) was adopted that makes virtually all of the Gulf Beach and Blind Pass areas non-conforming under state law.

There is a stringent (but flexible) state coastal permitting process that allows for rebuilding. The state coastal permitting process was revised to allow some flexibility as a result of a U.S. Supreme Court case (Lucas v. South Carolina Coastal Commission) that strongly indicated that an absolute prohibition against rebuilding may result in a regulatory taking of private property for which the government must pay damages.

Another state prohibition is the 30 year erosion line. It is extremely difficult to rebuild where the 30 year erosion rate place the structure into or near the Gulf or Bay. This has become an issue primarily in the Blind Pass and Gulf Pines areas, and both have been involved in beach re-nourishment programs.

Likewise, if a hurricane or tropical storm suddenly erodes (avulses) the shoreline, it may be necessary to tear down the structure and rebuild further away from the shoreline. This has occurred in Sanibel in the past and can be expected to occur again.

Other local issues, such as setbacks from open bodies of water, developed area requirements, vegetation buffering requirements, and the like, may affect the ability to rebuild at the same residential density or development intensity in the event of a disaster.

Other calamities, such as the personal calamity of an accidental fire, can cause more than 50% damage, triggering the requirement that the structure be elevated or more likely, torn down and a new conforming structure be built.

Because of the City's stringent density requirements, dating back to its first Comprehensive Land Use Plan (CLUP) of 1975, many structures could not feasibly be reconstructed to current city regulations. The CLUP was primarily designed to decrease density, but it did not operate to deny development that was already in place or vested (per litigation).

In 1991, City Council addressed the build back issue and adopted an ordinance (91-31, with a few amendments, now codified as Chapter 126, Article V) that provided for build back in case of a disaster. It did provide for an expedited relief process (permitting by Council unless delegated), in what is now in Secs. 82-51 through 82-57 of the Sanibel Code. However, it left on the table the issue of whether the density and development intensity of the many non-conforming condominiums will be lost or preserved.

While that aspect was troubling to the condominium owners and other property owners both in 1991 and thereafter, the ordinance was adopted pre-Lucas, and it was open to question as to whether there could be a taking where there was not a complete loss of substantially all of value of the property. (Lucas did not fully answer that question, either.)

Under condominium law, each owner owns in fee simple the air-space within his or her condominium unit and a pro-rata share of the common elements (buildings and grounds) of the property in a tenancy in common. Thus, whether an owner actually loses a specific unit in a destroyed structure is a matter of condominium law and/or documents. Since the owner has some rights in excess of his or her own unit's airspace, it is questionable whether any individual unit owner loses substantially all of the value of his or her investment.

For this reason, takings jurisprudence does not provide a readily available remedy for loss of density. There is local case law that does isolate the "stick" of "riparian right" from the "bundle of sticks" comprising real property ownership. In that case, (Kiesel v. Lee County) the Court found that there was a taking by virtue of the loss of the riparian right to view the Caloosahatchee River as the result of the County's building the Midpoint Bridge. This was found to be a taking even though there was no loss of the house. Whether this theory would apply to a lost condo unit is not known.

More important, however, is the Bert J. Harris, Jr. Private Property Rights Protection Act of 1995 (Chapter 70 Florida Statutes). That Act was adopted on the heels of the "Contract with America" movement in U.S. Congress. One of the aspects of the Contract with America movement is a "pay to regulate" provision. Although the concept has been introduced and debated in Congress many times since 1984, it has never been adopted as federal law.

However, Florida and a couple of other states adopted something like it. The Bert Harris Act provides that an act of the government that permanently imposes an inordinate burden on a particular property may have to compensate the owner(s) for the loss in value, even though the value is not totally destroyed.

A part of the definition of "inordinate burden" includes the imposition of a burden that in fairness ought to be borne by the community as a whole. As applied to the Sanibel build back policy, if the problem is overcrowding, arguably reduction in density should be done across the board, not by waiting for a group or class of homeowners to suffer a disaster and then deprive them of their right to rebuild their property. Again, since the build back ordinance pre-dates the Bert Harris Act, this was not the issue then, but it could be now. To date, there is no reported case law settling this issue.

The Proposed Ordinance:
The ordinance proposed is a very modest proposal, to address an issue that has been a sore spot in the City for many years. It is dedicated to a fundamental fairness issue-that a disaster occurring to residential and multi-family property owners should not be used as a means to achieving a reduction in density on the island.

The City in the past has reduced the actual potential density in Sanibel by hundreds of units in the most honorable and appropriate way-by voluntary purchase and taking via eminent domain. Those properties are primarily in the Sanibel Gardens, Tarpon Bay & Sanibel Highlands Subdivisions. Significant density was also reduced in the Sanctuary at Wulfert by negotiation. The difference between those reductions and reduction by disaster is obvious. In all of those cases the property owner got a benefit from the city either in the form of cash or development rights. In the City's build back regulations, the property owner gets nothing from the City other than a prohibition on rebuilding.

While many penurious people prefer government to regulate rather than purchase, it is highly questionable that the City could accomplish this. The more likely scenario is that in a disaster situation, the City will be required to pay damages or to allow the redevelopment, or both.

The Relief provisions in Sec. 82-51 through 82-57 of the Code provide some comfort, but when considered in conjunction with Sec. 126-215, seem incomplete. Since Chapter 82 is primarily procedural and 126 is primarily substantive, relief under chapter 126 is necessary.

The draft ordinance is designed to address a rather narrow issue. Consequently, it does not address commercial properties. It is self-limiting, i.e., it seeks only the minimal relief deemed necessary to assure owners that they will not lose their unit in a disaster.

It does not attempt to damage the environment. It does not attempt to gain an advantage due to a disaster. It does not address pre-disaster redevelopment, although that is an issue that the island must eventually face. It even recognizes that mitigation (though potentially costly) may be appropriate in some circumstances.

Therefore, the ordinance must be considered as a correction of a previously-addressed and partially-corrected problem. Sellers, buyers, lenders, Council, staff and the community at large should have the comfort of knowing that the investment in one's home or condo is afforded reasonable protection and that there is clarity and predictability in reconstruction after a disaster.

Sanibel Board of Realtors-Explanation of Ordinance
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