Summary Explanation

Proposed Build Back Ordinance-Explanation Summary

Background:

There are many lawful nonconforming residential and multi-family structures in the City

Some non-conforming because they devoted to use no longer permitted in the district in which they are located

Most non-conforming only because the structure, not the use, no longer permitted

Structures may be non-conforming due to one or more of several regulations

Flood regulations
- City 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 condominiums have units on the ground floor and are built to maximum building height now allowed in the City
Coastal Construction Setback Line (CCSL)
30 year "erosion" line
Local Land Use Regulations
- Affect the ability to rebuild at the same residential density or development intensity
- Setbacks
  - In general
  - From open bodies of water
- Developed area requirements
- Vegetation buffering

1991 Build Back Ordinance

Council adopted ordinance 91-31, see code Chapter 126, Article V and Secs. 82-51 -- 82-57
Provided for build back in case of a disaster

Did not provide complete relief
Density and development intensity of the many non-conforming condominiums and other dwelling units may be lost

Taking Law (U.S. Constitution)

If City regulation deprives owner of substantially all of value, government may have to pay owner fair compensation

Harris Act-1995

Action of the government that permanently imposes an inordinate burden on a particular property
Government may have to compensate the owner(s) for the loss in value
Even though the value is not substantially or totally destroyed
"Inordinate burden" includes burden that in fairness ought to be borne by the community as a whole.
If reduction of overcrowding is the burden, 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
Harris Act not issue in 1991
- Build back ordinance pre-dates the Bert Harris Act
- Thus was not the issue then, but it could be now
- No reported case law settling this issue

Proposed Ordinance

Very modest proposal
Addresses issue that has been a sore spot in City for many years
Fundamental fairness
- 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
- Does not address commercial properties
- Self-limiting
  - Seeks only the minimal relief deemed necessary
  - Assures owners, buyers (and lenders) that they will not lose their dwelling unit in a disaster
  - Does not damage the environment
  - Does not try to gain an advantage due to a disaster
  - Does not address pre-disaster redevelopment
  - Recognizes mitigation as technique for City

Other density reduction methods have been used since 1987

City has reduced actual density by hundreds of units
By voluntary purchase
By Eminent Domain (Taking) where necessary
- In each case the property owner is compensated.
  - Examples: Sanibel Gardens, Tarpon Bay and Sanibel Highlands
- By negotiated exactions
  - Example: Sanctuary at Wulfert Point

Nature of Reduction of density by purchase (including eminent domain) or by exactions

Nature of Reduction by Disaster

Property owner gets nothing other than a prohibition against rebuilding.
City Risk
- City may be liable for damages
- City may be required to allow the redevelopment
- Both

Conclusion

Ordinance--correction of a previously-addressed and partially-corrected problem.
Comfort
- Owners, 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

Predictability

There must be clarity and predictability in reconstruction after a disaster.
446748_1 7-13-04

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