Building variances too difficult to get? Or too easy?

It’s only four words — plight of the applicant — but members of the Naples Planning Advisory Board and City Council have a hard time getting past that standard.

In a city where few building variances are granted, it seems that “plight” can be interpreted in many ways. And that’s why the Advisory Board will revise the standards for granting variances this summer.

“I think ‘a’ is impossible to meet,” Advisory Board Chairman Falconer Jones said of Section 86-205 C.3a, a stumbling block for many on the board and City Council. “When you read that, there’s almost no way to grant a variance — even if it’s a better outcome or better for the neighborhood. ... Rarely do variances get approved and, when they do, you’re almost stretching. We don’t need to overstretch our boundaries.”

That standard also bothered City Councilman Gary Price, the former Planning Advisory Board chairman.

“There were way too few where the applicant had nothing to do with the situation,” he said last Wednesday, during a City Council discussion on reworking the standards.

“If we could change this and make it better, we could help ourselves in the process. ... I’m not trying to make it easier to get a variance, don’t get me wrong. ... There’s something in the plight of the applicant that needs to be addressed. ... If I applied it, no one would get a variance,” Price said.

During the same meeting, city watchdog Henry Kennedy accused Naples of being very lax. He said he has seen applicants request variances after building something that didn’t fit requirements, yet they received variances.

“I’ve seen people do it the right way, before it’s built, and be denied ... because they did not have a lawyer. ... Code is code and we must enforce our codes,” Kenney added.

Robin Singer, the city’s community development director, said Naples is very stringent when it comes to variances, waivers of fence and wall height requirements, and rezonings — and most after-the-fact variances and waivers are caught by inspectors before a certificate of occupancy is issued.

A variance, she said, is meant to address a unique situation. Of the seven variance applications last year, three were withdrawn, three were denied, and one was approved. This year, three are pending, two were approved, and one was denied.

Sometimes a variance can involve just inches. Last year, administrative variances were granted to two applicants for a 2.4-inch encroachment and another for one that measured just under 1¤½ inches. Under city code, the city planning director can grant administrative variances after the fact for previously permitted improvements involving variances that are equal to or less than 5 percent of the code requirement.

Singer said the 5 percent accommodates older homes built before the new standards. They go through another set of criteria and, if those aren’t met, applicants must go through the usual variance process. To be granted a variance by the Planning Advisory Board and council, applicants must meet three standards:

-- a. The plight of the applicant is due to unique circumstances not created by the applicant.

-- b. Special conditions and circumstances exist that are peculiar to the land or structure involved and are not applicable to other lands or structures in the same district.

-- c. The variance does not permit the establishment or enlargement of any use or structure that is not permitted in the district in which the variance is requested.

After discussions with the Planning Advisory Board, the Planning Division recommended adding two more criteria:

-- d. The variance granted is the minimum variance that will make possible the reasonable use of the building, structure or service system and promote the health, safety and welfare of the community; and

-- e. The grant of the variance will be in harmony with the general intent and purpose of this chapter and the city’s Comprehensive Plan and will not be detrimental to the public health, safety and general welfare.

A memo written by Naples Planning Manager Steve Olmsted said those additional standards should ensure variances are consistent with the Comprehensive Plan and residents’ health, safety and welfare.

Still, Jones doesn’t believe that will help. “I don’t think we need ‘d’ and ‘e.’ We need to change ‘a,’ “he said.

Jones pointed out ‘a’ is directly contradicted by “method of approval,” which says a variance’s intent is to provide an exemption when special conditions or circumstances exist that are “consistent and in harmony with the intent of the zoning ordinance.”

It also says a variance should be the most practical or logical solution, achieve equal or greater aesthetic character than a literal interpretation, and be assessed for consistency with the surrounding neighborhood and impact on adjacent properties.

“The way it is if you meet the method, you may or may not meet the standard,” Jones said. “It’s almost a trap. ... The problem is, if you really want to argue that, everything is the plight of the applicant. We’ve had attorneys present to us varying interpretations they feel are correct. They’re all very certain their interpretations are correct.”

Jones noted that applicants often argue they bought a home in that condition — usually an older home that doesn’t meet current standards — so they didn’t cause the problem. “But we say you’re asking for a variance, so you are creating it,” Jones said.

Residents who hire lawyers familiar with the code intricacies usually are successful, Jones said, but only if an application meets those requirements or the lawyer’s interpretation of a resident’s plight does. But he said the process can be costly, about $1,800, and could be higher if a lawyer is kept waiting.

Olmsted’s memo says staff considers zoning codes something that should be applied equally and that variances should be granted only in rare instances when special and unique circumstances exist, not as a way to grant relief from code requirements. Olmsted suggested the Planning Advisory Board discuss streamlining the process for applicants who seek waivers before construction, that standards be met in all cases, and that variances shouldn’t be used to camouflage city staff errors.

The Planning Advisory Board will discuss the changes June 14. The council will discuss the board’s recommendations Aug. 16, and the final vote will be conducted Sept. 6.