A Tale of Two Cases By Larry Schopp , Board Member , Committee of the Islands , as published in the Island Reporter and Island Sun , January 25 , 2013 The people’s confidence in decisions of public officials is essential to the continuity of good local government . And one of the things we look for in such decisions is consistency in the principles upon which those 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 3 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 . Why were the two cases treated so 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 that 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 . The Committee of the Islands invites your input and ideas on this important subject . Email your comments to coti @ coti.org . You can read commentaries on other island issues on our web site at coti.org and / or visit us on Facebook .