Acting Planning Director Roy Gibson read the title into the record.

The Commissioners were polled for site visit, ex parte communications and conflicts.

                                              Site Visit     Ex-Parte

Commissioner Kirchner             Yes               No

Commissioner Johnson              Yes               No

Commissioner Storjohann          Yes               No

Chair Marks                              Yes               No

Vice Chair deWerff                  Yes               No

Commissioner Ketteman           Yes               No

Commissioner Grogman           Yes               Yes

Planning Commissioner Secretary Sherri Enright swore in the following witnesses.

Roy Gibson, Acting Planning Director

Josh Ooyman, Planning Department Staff

Larry Schopp, Sanibel Resident

Caroline Peirce, Sanibel Resident

Elizabeth Goldman, Sanibel Resident

Mark Calkin, Sanibel Resident

John B. Scholz, Sanibel Resident

Bernie Ortwein, Sanibel Resident

Alicia Galante, Sanibel Resident

Bob Smith, Sanibel Resident

Steve Hartsell, Attorney for the Applicant

Matt Felton, Sanibel Resident

Randy White, Owner/Applicant

Jason & Babs Maughan, Sanibel Residents

Joshua Ooyman, Planner, provided a brief overview of applications for a variance and Development Permit.  The applications and May 22, 2018 Staff Report, including attachments A-J were entered into the record as City Exhibit C1.

Mr. Ooyman reported that the installation of the dock and lift in question requires a Variance for the waterward extension and the location from side lot lines.  In order to consider the requested Variance, the Planning Commission is tasked with determining if the request meets the seven requirements for a Variance and if so, what conditions should be placed on the Variance.

Mr. Ooyman further stated the subject parcel is a narrow, unbuildable vacant lot with 30' of frontage located at 6428 Pine Avenue.  This parcel has historically been deeded as a boat access parcel and associated with a nearby residential Pine Avenue parent parcel that does not have canal access.  It is currently owned in common with a vacant buildable residential parcel located at 6419 Pine Avenue, a parcel without any water access.  The dock lot parcel has a lawfully existing but non-conforming dock that was repaired pursuant to a permit issued after Hurricane Charlie.  The dock is approximately130 sq. ft. over water and 35 sq. ft. of walkway over land.  The dock is currently non-conforming to the required 15' side-yard setbacks, but given that the parcel is only 30' wide, it would not be possible for any structure to meet the side setback requirements. 

The dock extends into the canal between 13.4 -14' past the mean high water line. The regulations allow for extension to 13.8'.  There are mangroves in the canal that extend into the canal.  Attachment G illustrates the proposed site conditions.  The Applicant proposes to add a 2 piling elevator vertical-style boat lift, without any outside pilings to the outer edge of the existing dock platform. The proposed boat lift is 7' 11" in width. The plan avoids any impact to the mangroves.  The Applicant has reduced its initial proposal from the initial 11.5' in width to 7'11" in width and proposes to replenish the gravel shell path to access the dock.

The Variance request:  Two Variances were required to accommodate the proposed lift.  The proposed lift on Attachment G, L-8P will extend into the canal approximately 22' when measured from Mean High Water Line.  This is 8.2' past the maximum waterward extension allowed by Code of 13.8'.

The second Variance is for a side setback.  The current dock is 2.2' away from the eastern property line and 7.4' away from the western property line and it currently encroaches into both required 15' side yard setbacks. The proposed boat lift will not encroach any further into the side yard setback than the existing dock.  The lift will be approximately 7' away from the nearest property line as extended into the waterway.

Staff has received and reviewed several public comments relating to the continued accessibility of the canal.  The Applicant considered shortening the length of the existing dock finger pier walkway.  This would have a significant impact on mangroves in the area.  Alternatively, the Applicant revised the application to include a boat lift with a width 3.5' shorter than the original proposal.  The Applicant posted markers in the canal demarcating the waterward extent of the proposed boat lift that is approximately 9' from the edge of the existing dock.

Attachment H demonstrates the proposed extension of the dock.  Attachment G denotes the depth.

Staff's opinion is that a reduction of the 5' width of the terminal platform would further reduce the Variance to waterward extension.  However, the Applicant strongly believes the 5' width is necessary for safety precautions.  It is important to note, that when the Applicants boat when currently moored at the existing dock, it extends nearly as far into the water as the outer most edge of the proposed boat lift.

Public Comments have been primarily concerned with the navigability of the subject canal.  These comments are entered into the Record as composite exhibit P-1.

While Staff believes that a reduction in the width of the terminal platform could reduce the amount of Variance requested to the waterward extension, Staff also finds that the proposed boat lift does not project any further into the canal than a vessel moored at the existing dock.  Should the Planning Commission find that the application meets the 7 Variance Standards Staff recommends the Conditions in the Staff report be included with the approval of a Variance and the implementation Development Permit.

Commissioner Johnson asked if similar Variances in the City have been approved?  Mr. Ooyman confirmed that this type of Variance is relatively common and typically granted.  Commissioner Johnson asked if any of the environmental concerns or navigability relating to mangroves had been addressed.  Mr. Ooyman noted that those issues were considered but these are private canals and maintenance of such is up to the individual homeowners and not done by the City.  Commissioner Johnson asked about the existing mangroves.  Mr. Ooyman referred to Attachment F, demonstrating that most of the mangroves are on other properties.  Mr. Ooyman further stated that in order to shorten the finger pier walkway to the dock, it would impact mangrove a on the property that Natural Resources felt needed to be protected.

Commissioner Storjohann noted once again the Planning Commission was faced with a conflict.  There are mangroves in the area that have not been maintained and have been allowed to narrow the body of water, impacting the navigability of the waterway.  Either property owners need to appropriately trim and maintain their mangroves or not complain about the navigability of the canal.  Commissioner Storjohann asked if the regular trimming of mangroves would have allowed this dock to be moved further landward.  Acting Planning Director Gibson clarified that the concerns have been regarding the width of the canal.  However, it is the existing mangroves on the property that prohibit the dock from being moved further landward.  The public comments relate to mangroves in other areas causing a narrowing of the canal. As such, the Planning Department does not object to this Variance request because it does not believe it adversely impacts the canal.  Commissioner Storjohann stated she understands this but is asking her questions deliberately so that property owners in the area are aware they can and should trim their mangroves and that would avoid some of their own concerns.  The narrowing of the canal is in part caused by existing owners who are not trimming their mangroves.  Commissioner Storjohann asked if the mangroves had been maintained, would the dock be allowed to be moved landward. 

Natural Resources Director James Evans responded to the inquiry and stated that Holly Milbrandt is the Project Manager on this case but Director Evans reviewed what can and cannot be done with mangroves.  The City of Sanibel issues permits for trimming mangroves.  Property owners along waterbodies have a riparian right and can trim their mangroves.  In this area, there are a number of birds and bird nests in this canal.  Additional trimming, especially during bird nesting season, may not have solved the issue.  Due to the water depth, the dock cannot be moved inward and trimming the mangroves would not make a major impact in this case.  Natural Resources did review options.  If you were to moor a boat there, it would not protrude any further than it would in the future with a lift.  Director Evans did have a number of calls in April regarding the bird nests in the area.  Natural Resources did a review and advised members of the Del Sega neighborhood of the requirements to trim in the area in regard to the bird nests. 

Commissioner Storjohann asked if there were a homeowners association in this community.  Commissioner Storjohann asked if this neighborhood had ever dredged and if they haven't, should the community seek dredging.  Director Evans noted that he did not know if the community had dredged or even if they should dredge.

Chair Marks noted that when he did his site visit, it appeared that there had been a significant amount of mangrove trimming that was done illegally. 

Vice Chair deWerff asked how many homeowners to the North would be impacted.  Chair Marks responded that according to the materials, there would be approximately one-third of the docks impacted.

Commissioner Ketteman asked if other Variances had been granted in this area.  Acting Planning Director Gibson confirmed the Applicant will be providing information in his exhibit of other Variances granted within this subdivision.

Commissioner Grogman confirmed that the width of the boat lift will not cause an extension further than the current boat when moored.  Mr. Ooyman confirmed this to be the case.  Commissioner Grogman asked if the Variance from 2004 regarding the side setback could be carried forward or if that needed to be re-decided.  Acting Planning Director Gibson confirmed that anytime something was done to a non-conforming property, a Variance must be granted.

Applicant's Presentation:

Mr. Steve Hartsell, Esq. on behalf of the Owner provided a brief summary.  This is a request for a Variance for the waterward extension limitations as well as the side lot line setbacks.  Mr. Hartsell provided a presentation to the Planning Commission, demonstrated on-screen and entered into the record as Applicant's Exhibit A-1.

Mr. Hartsell stated this parcel is designated as Lot 24 and is located in the Del Saga neighborhood. The lot is divided into three parts and the parcel is an accessory dock parcel to allow canal access.  The owners live across the street and also own a vacant parcel across the street.

Mr. Hartsell provided an aerial photo of the vacant lot and the existing dock.  The lot is a narrow 30' wide lot.  The mangroves in the area extend into the canal 6-7'.  The applicant provided a detailed drawing of the dock.  As originally proposed, the boat lift was contemplated to be 11.5' wide.  The public raised several concerns, particularly related to navigability.  After reviewing the concerns, the owner and the marine contractor reviewed several options and provided alternatives.  Rather than narrowing the dock and creating a safety problem, they did look at shortening the finger pier.  The owner was willing to shorten the finger pier but Natural Resources expressed a concern about trimming the mangroves behind the dock and would not support shortening the finger pier.  Consequently, the owner and the marine contractor agreed to shorten the boat lift itself by 3' to accommodate the owner's existing boat.

Mr. Hartsell noted that the owner had definitely attempted to address neighbor’s concerns by shortening the boat lift and its extension. 

Another concern raised by the public was whether there was a permit for the existing dock.  There is a permit for the existing dock and although non-conforming, it is legally existing. 

Mr. Hartsell provided an aerial view of the proposed dock, and proposed lift and owner's boat.  This visual demonstrates that the boat extends further into the water than the lift.  Additionally, the boat and dock to the west extend further than the Applicant and Property owners proposal.

Mr. Hartsell also reviewed other options considered in regard to relocating the dock itself.  Those options would have required significantly more impact to the mangroves that the current proposal. 

The marine contractor installed poles in the area to denote the location of the proposed boat lift.  Aerial photos of these poles confirm that other boats in the area protrude further into the canal than the farthest extent of the proposed boat lift.  The photo also helps illustrate that the mangroves extend further into the canal than the proposed boat lift.  The existing mangroves limit navigability to that side of the canal.

The Applicant also provided an exhibit of what it might look like if the boat lift were in place and two other boats passed.  This demonstrated there is significant room to pass, including 29' of navigable channel with a 4' depth.

The Applicant briefly addressed the variances and highlighted those seven standards for both the waterward extension and the side setback.  The owners have agreed to reduce the width of the boat lift from 11.5' to just under 8' for the purpose of minimizing the impact.  Most of the properties on this canal have docks and most of those that have docks also have lifts.  The lift is going to be more consistent with protection of the mangrove fringe and the marine environment.  Special conditions relate to unusual conditions specific to this lot. (1) It is a narrow 30' wide parcel; (2) It already has a non-conforming dock in place.  (3) There is really only one place for the lift to occur.  (4) The property is too small for any other use.  The Applicant submits that this Variance is related to special conditions that are unique to this piece of property, and reasonable steps have been taken to mitigate or eliminate the requested Variance.  Applicant submits that it is the minimum Variance necessary to mitigate the hardship that has been demonstrated in regard to the waterward extension and addressed the side lot line Variance.  If you enforced the 15' side setback for a 30' wide lot, there would be nothing left in the middle.  This is related to the unusual conditions of this specific lot and does not result from the actions of the applicant and they have taken all reasonable steps to eliminate that and it won't be adverse to the neighborhood.

The Applicant will be happy to answer any questions and states that they are in agreement with the Conditions listed in the Staff Report with a clarification to Condition 8b.

The Commissioners posed questions to the Applicant, which were answered accordingly.

Commissioner Johnson confirmed that the extension, as requested, would not extend further than the existing mangroves and there are no issues with navigability with the proposal.  The Applicant confirmed this to be the case.  Commissioner Johnson asked about shortening the finger pier and whether the mangroves behind it could be relocated.  The Applicant noted that Natural Resources could address the specifics but in the Applicant's view, reducing the width of the boat lift addresses the issue. 

Holly Milbrandt, Environmental Biologist with the Natural Resources Department stated it is Natural Resources job to look at impacts on all natural resources and make recommendations for any given site. In this particular instance, Natural Resources looked for ways to avoid impact to mangroves.  In this instance, the existing mangrove is providing stabilization in the area.  Natural Resources recommended not to move the finger pier and instead to shorten the boat lift.

Commissioner Kirchner asked about this parcel as a boat access parcel and questioned if there a financial hardship condition that needs to be met.  Acting Planning Director Gibson noted that the hardships must be related to the subject area and not to personal, financial or other issues.  Commissioner Kirchner raised the fact that the owner purchased this lot knowing the width of the lot and that the property was for sale.  The Applicant noted that whether the lot is for sale is not relevant.  The owner owns additional property in the area and has intended to be a good neighbor.  The owner has addressed valid navigability concerns and that is the issue.  Any financial impact is irrelevant to this application; the owner has demonstrated he has met the variance standards. 

Commissioner Storjohann clarified when the property was platted before the City existed by Lee County and that this strip was platted and attached to the ownership of the adjacent parcel.  The Applicant clarified that it was platted after several owners and a number of years prior to the current owner.  This particular piece was left out appropriately when the adjacent parcels got bigger.  This was left as a boat access parcel and has been conveyed 2 or 3 times to property owners on Pine Avenue, who don't have boat access, to provide them with boat access.

Chair Marks stated that in the neighborhood, there are already 32 properties with docks and believes it could just be an issue of "not in my backyard and I have mine but you cannot have yours."  At this time, Chair Marks asked for public comments.

Public Comments;

Mark Calkin, Sanibel Resident.  Mr. Calkin asked Ms. Milbrandt if she had visited his property and reviewed the erosion.  The activity at this parcel has increased and this is causing additional erosion to his property.  From an aesthetic view, there is no question that you see a canopy of mangroves but people do not worry about mangroves when navigating a canal, they are worried about boat docks.  People are coming closer to his property to avoid this dock.

Bernie Ortwein, Sanibel Resident.  Mr. Ortwein is confused about the discussion because he has not heard anything that would prohibit Mr. White from having a dock or a lot.  Mr. White wants a lift but that requires a Variance, which should not be easily approved.  In this case, there is no rationale for a Variance and it is a divergence from what exists.  Since the owner can still have a boat and have a dock, it is not a reason that he wants a different boat or different configuration.  He has not heard a hardship that would allow him to change the law.

John Scholz, Sanibel Resident.  Mr. Scholz has been on other Planning Boards and has dealt with a lot of pier and dock reviews. Mr. Scholz does not believe the threshold of hardship has been met in this instance.  The owner bought the property knowing what could be placed on it and should be held to that.  If this is allowed, it sets a precedence and a proliferation for other similar requests in the area.

Alicia Galante, Sanibel Resident.  Ms. Galante questions the emergency permit issued after Hurricane Charlie and cannot understand its rationale.  Acting Planning Director Gibson clarified the City's policy after Hurricane Charlie related to any structure damaged by Hurricane Charlie.  This dock was rebuilt pursuant to that emergency permit.  Ms. Galante asked if the same process was followed regarding inspections.  Acting Planning Director Gibson noted there was a different review that was instituted by City Council to expedite repairs subsequent to the Hurricane.  Ms. Galante also asked if that would have included permits of removal of mangroves.  Ms. Galante has reviewed imagery of mangroves in the area through the years and does not see prior evidence of the existence as a dock.  She believes that this dock did not exist prior to Hurricane Charlie and believes the dock was installed through a glitch in the permitting process.  Finally, in this instance, the owner is not seeking to build a home on this lot for his own use.  While the listing is not active on MLS, it has not been terminated.

Jason Maughan, Sanibel Resident.  Mr. Maughan supports the application for the Variance.  He and his wife live in the area.  While he appreciates the neighborhood views, he has been a long time resident of this area and in fact, lived in the area when there were no canals and no mangroves.  Mr. Maughan believes that people have a right to develop their land to its best potential.  The dock was permitted legally at the time.  The proposed lift presents no interference with navigation.  Mr. Maughan lives on a lot that has to pass the dock/lift area every time he goes out.  Those parcels on a canal pay extra for the privilege of living on the water and it is his personal belief that those who live on these parcels should have a right to have a dock and/or a boat lift in these circumstances. 

Chair Marks noted that two of the public comments focused on the hardship.  In his view, if you improve something, you do not have to prove a hardship. There is a large benefit to having a boat up on a lift instead of having it in the water.  When someone adds a lift, it is an improvement to the water quality.

Commissioner Storjohann asked what the norm is for boat lifts.  Prior to answering, Acting Planning Director Gibson responded to the hardship question noting that there was in fact a hardship given the width of the lot.  This dock parcel has historically been accessible to a residential lot and Staff is relying on that only for its allowed use.  The use of this parcel can only be maintained lawfully in the manner in which it has been.  It has to remain accessory to a lot that is buildable. The Variance hardship here is the waterward extension limit for a boat lift to be added.  The dock cannot be reconstructed or modified in any way without setback relief. The owner is already allowed to have his existing boat moored at this dock. The lift merely allows the existing boat to be lifted out of the water.  For this reason, Staff is neutral but does not object to the request, as the Applicant has addressed the minimum necessary standards.

The Planning Commission has considered many Variances for property owners to add boat lifts to existing docks.  While every application has different circumstances and the Planning Commission should base each Variance on its own merits, there are other Variances granted in this neighborhood.  But, there are similarly situated properties in this subdivision and in Sanibel where the Planning Commission has found that the hardship criteria have been met and Variances granted.

Commissioner Storjohann asked if the lift were a better environmental solution than mooring a boat at a dock. In general, Staff has taken the position that lifts are a better environmental solution.

Commissioner Johnson asked the Applicant to describe the long term plans for this parcel and the adjacent property.  Mr. Hartsell does not know the long range plans for the property.  The immediate plan is to install the boat lift and in this case, there is a hardship because of the shape, size and location of the parcel.  In today's environment, lifts are customarily part of a dock and in this case, the lift mimics and matches the existing boat that is currently sitting in the water.