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Tale of two cases

By Staff | Jan 25, 2013

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


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


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


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


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


Larry Schopp is a board member of

Committee of the Islands which invites

your input and ideas. Email comments

to coti@coti.org.