Section 86 - 43 - It ’ s worth retaining Larry Schopp , Sanibel In a recent survey of Island residents , well over half of respondents considered “ oversized residences ” an urgent issue . Whatever the cause for the public ’ s concern , it warrants a closer look at the rules in place for dealing with “ oversized ” homes on Sani bel and ways in which the process might be improved . Many localities do not regulate the size or mass of homes , other than by set back regulations and height and lot coverage limitations - so called objective criteria . Some people have argued t hat that is all that is needed on Sanibel . Indeed , in the case of some neighborhoods , lot size and the unavailability of contiguous lots for grouping may take care of the problem . However , that is not always the case . The recent experience at Chateaux Sur Mer is but one example . There , the owners purchased a lot that would support a very large house under the objective criteria . Still , many neighbors reacted with alarm at the size and mass of the proposed home in relation to the neighborhood as a whole . For years Sanibel has relied on Section 86 - 43 of the Land Development Code to supplement the objective criteria . The operative language is straight forward “ … no structure shall be constructed or altered in any manner … so as to interrupt th e rhythm of existing structures in the established neighborhood ; or in any manner which would be inharmonious with the general atmosphere and character of the established neighborhood . ” It seems clear enough ; new construction in a given neighborhood must n ot interrupt the rhythm of existing structures or be inharmonious with the general atmosphere of the neighborhood . Why then is there controversy ? The problem is that the law requires subjective judgments and that tends to make people uneasy . S ome people would rather have a neat formula by which to calculate whether or not a structure complies . Much of code enforcement works in just that way . But , that does not mean that Section 86 - 43 is defective or unenforceable . Regulators are asked to make subjective judgments all the time . In such cases the public needs assurance that decisions are not being made arbitrarily . Currently , Planning Department personnel usually decide ( sometimes in consultation with an independent architect ) wheth er a structure complies with Section 86 - 43 , pursuant to a short form application ; one which is not required to go before the Planning Commission for fuller review . It may be referred to the Planning Commission by the Planning Director as was the case re cently with the proposed home in Chateaux Sur Mer . ( In a 4 - 3 vote , the Commission declined to approve that application . ) However , referral to the Commission was discretionary . Long form applications , on the other hand - those which must be referred to the Planning Commission - are usually required for development projects that are out of the ordinary . Elevated swimming pools which exceed a height of seven feet fall within that category . Shouldn ’ t a home which will exceed the size of all others in a ne ighborhoods fall within that category as well ?Whereas it would be impractical and unnecessary to send all new home applications to the Planning Commission , there are advantages to having the Commission consider cases which involve difficult ju dgment calls under 86 - 43 . Here are the reasons : ? A hearing before the Commission is quasi judicial in nature . ? Witnesses , including expert witnesses , testify under oath . ? Members of the public , particularly those whose interests may be directly affected , may participate , produce witnesses and be represented by counsel . ? Commission decisions , which must be based on substantial evidence , not mere personal opinion , are reviewable by City Council and ultimately , the courts . An additional reason to retain Section 86 - 43 is that actions in furtherance of 86 - 43 are not subject to challenge under the state ’ s Bert Harris law . That ’ s the law which says a property owner may seek compensation for the loss of fair market value of real property when governmental action “ inordinately burdens ” an existing use of that property . Laws enacted prior to May 11 , 1995 are exempt . New approaches to home size regulation , if challenged , would have to pass muster in the courts under Bert Harris . What are possible next steps ? ? There is a simple , practical way to expand Planning Commission jurisdiction in Section 86 - 43 cases without overtaxing the system . A long form application could be required any time a propos ed home would exceed the size ( calculated on a consistent basis ) of the largest home in a given neighborhood ( or the city as a whole if there is no established neighborhood ) . Applications which do not trigger Planning Commission review would be processed , as before , by the Planning Department alone . ? Much of the uncertainty which exists today under Section 86 - 43 could be eliminated by the adoption of a set of design criteria which would be used by the Planning Department and the Planning Co mmission in assessing compliance . For example , hipped roofs , extended roof overhangs and indented second stories - design elements which tend to reduce the appearance of mass , could be considered mitigating factors in the analysis . A comprehensive set o f published design criteria would have the additional benefit of influencing design decisions before they even reach regulators . Section 86 - 43 has served Sanibel well . We should improve it , not rush to abandon it . One need only look to neighboring communities to envision what Sanibel might look like today if the only limitations on home size were set backs , and height and lot coverage limitations .