Tale of two cases

Larry Schopp
The people’s confidence
in decisions of public
officials is essential to
the continuity of good
local government. One of
the things we look for in
such decisions is consistency
in the principles
upon which the decisions
are based. That consistency
means we can rely on
the same rules being
applied to different cases.
But what if the same
rules aren’t applied? What
if the personal preferences
of the officials override
that consistency?
We can find the
answers to these questions
in a tale of two cases that
were recently decided by
the Sanibel Planning
Commission.
On January 8, 2013, the Commission
granted a variance to construct a deck
for outdoor dining that would encroach
upon a setback established in the Land
Development Code.
The applicant proposes to open a
donut/coffee shop with outdoor dining
on Periwinkle Way. He believed that
there was no other place for the deck,
given other site plan requirements
imposed by the City.
A variance is an extraordinary remedy
intended to prevent extreme hardship
to property owners due to circumstances
beyond their control. Few variances are
ever granted because the rules for their
issuance are very strict. Were that not
the case, zoning ordinances might easily
be circumvented any time a property
owner felt inconvenienced.
The commissioners granted the variance
though it appeared obvious that the
applicant had failed to meet at least
three of the seven prerequisites. As I
saw it, this was not a close case where
reasonable people could differ as to the
correct outcome. This was one of the
clearest cases for denial of a variance
that I have seen.
Yet for some reason the discussion
centered on traffic flow, parking, the
nearby eagle nest and the possible need
for crosswalks – not the appropriateness
of a variance. City staff and some
commissioners appeared to believe that,
since the applicant had been cooperative
and agreed to a number of necessary site
plan changes, it should be rewarded
with a variance for the outdoor deck.
But that’s just not the way the Land
Development Code is intended to work.
A vote is taken
Only after the presentations concluded
and a motion was made by the chairman
to approve the variance was public
comment allowed.
I was the only member of the public
to speak and used my three minutes to
explain why the applicant was not entitled
to a variance to build a deck. My
main point was that the applicant could
open a full service donut/coffee shop on
the property without an outdoor deck.
Here is a brief summary:
A variance may not be granted if the
need is self-imposed. There are many
island establishments that offer donuts
and coffee and other light fare without
outdoor dining. Anyone who has
stopped into a Dunkin
Donuts shop anywhere
knows that outdoor seating
is not a prerequisite to
enjoying a donut and coffee.
Moreover, the property
owner could put the property
to any number of
other permissible uses.
Under the rules, if there is
another feasible use of the
parcel within applicable
requirements, a variance
may not be granted.
At the end of my three
minutes, without further
discussion, the vote was
taken and the variance
approved. The applicant’s
attorney was not asked to
respond to my points and
the City Attorney was not
asked for guidance.
Another case, another result
This was not a situation where laymen
were being asked to apply complex
laws they may not have understood. The
commissioners are familiar with the
rules applicable to the issuance of variances
and may always seek guidance
from the City Attorney if they are
unsure. Nor are they traditionally soft
on variances.
Just a few weeks ago they denied a
variance to a homeowner for an existing
boat lift that encroached upon a setback.
The reason given – correctly in my
view – for the denial of the variance
was that the problem was self-imposed.
In that case, the commissioners were so
concerned about correct application of
the law that the chairman asked the City
Attorney for guidance on the issue of
self-imposed hardships, commenting
“we’re governed by the Land
Development Code and under that Code
we have seven conditions that mandate
what we can and can’t approve here at
the Commission.”
So what might have motivated the
commissioners to issue a variance to
construct the outdoor dining deck at the
proposed donut shop? Here is a quote
from the minutes of the meeting which
at least sheds some light on the chairman’s
thinking: “… I’m always a big
advocate for the reduction of the 100-
foot setback area because of the view.
I’d rather see people sitting there eating
or drinking coffee than parking lots, like
you have further down Periwinkle. To
me that’s one of the biggest issues in
our town center general and whole commercial
district.”
Whether one agrees with those sentiments
or not, the Planning
Commission’s job is to apply the law as
written, not to set or argue with policy.
That’s the responsibility of the City
Council.
Two cases treated differently
Simply comparing the results in these
two recent cases, one involving a homeowner
seeking a variance for a boat lift
and the other a restaurant owner who
wanted to build a deck, begs the question:
Why such different results?
One possible explanation is that the
Commission views applications from
business owners more favorably than it
does ordinary homeowner citizens.
Both cases involved self-imposed
encroachments of legally
established setbacks. Yet
we got two diametrically
different results. The
homeowner lost and the
business owner won.
In the case of the
homeowner, commissioners
went to great lengths
to be sure the law was
being applied correctly,
while in the case of the
business owner they
seemed to do just the
opposite, treating the variance
as if it were a discretionary
dispensation.
If the public is to have confidence in
the Planning Commission as final
arbiter of its property rights under the
Land Development Code, what is needed
is consistent, faithful application of
the laws as the commissioners’ oath of
office requires. A perceived lack of
evenhandedness will simply erode that
confidence.
Larry Schopp is a board member of
Committee of the Islands which invites
your input and ideas. Email comments
to coti@coti.org.