Naples Council: Exceptions to city code not always consistent, but fair

Corey Perrine/Staff 
 Patrons enjoy outside at The Brick Saturday, Dec. 29, 2012 on 5th Avenue in Naples, Fla. The City Council sometimes reviews variances for business on an ad hoc basis, making it difficult to know what to expect as a business owner. The Brick, a coffee shop on fifth Avenue South, is being told by advisory boards that because they are west of 8th Street, they canÄôt have more outdoor dining.

Photo by COREY PERRINE, Naples Daily News // Buy this photo

Corey Perrine/Staff Patrons enjoy outside at The Brick Saturday, Dec. 29, 2012 on 5th Avenue in Naples, Fla. The City Council sometimes reviews variances for business on an ad hoc basis, making it difficult to know what to expect as a business owner. The Brick, a coffee shop on fifth Avenue South, is being told by advisory boards that because they are west of 8th Street, they canÄôt have more outdoor dining.

Emil Atanassov thought he had crafted the perfect compromise to add outdoor tables to his Fifth Avenue South coffee shop.

Rather than remove landscaping from in front of The Brick Coffee & Bar, like a pizza parlor on the street had done last year, he asked to put two tables along the sidewalk like a couple of other businesses on the west end of the street.

Naples City Council unanimously voted against Atanassov's request at its Jan. 16 meeting.

"They shot it down," Atanassov said. "I have no other options."

Votes like that can be frustrating for Naples business owners, who sometimes see exceptions to the city's code approved for competing businesses but not theirs. But Mayor John Sorey and council members maintain that while council does not operate perfectly, it operates fairly and with discretion, giving consideration to all who come before them asking for an exception to the code.

In Atanassov's case, council sided with the city's Design Review Board and city staff who said the west end of Fifth Avenue South sees more pedestrian traffic and abuts residential areas where noise from outdoor diners in the right of way can be a nuisance.

It can appear to the public and to petitioners that variances, permits and conditional uses are written and negotiated on the spot, sometimes to the detriment of business owners who spend months before advisory boards only to have their proposals changed last minute.

That happened in mid-December during a 50-minute conversation about what kind of fence and landscaping to allow around a downtown school. Council tweaked the proposal until the 6-foot-tall fence and 6-foot-tall hedge became a 6-foot-tall fence with a 6-foot-tall hedge that breaks every 50 feet for 10 feet where a 2-foot-tall hedge goes with a palm tree centered in the space. They approved the amended resolution unanimously.

"I didn't think there were four votes there to get the (proposed) hedge, so I crafted something that would get four votes," Sorey said.

Later that meeting, council had two hours of conversation about the new RaceTrac gas station at Airport-Pulling Road and North Horseshoe Drive. Council approved a site plan with seven deviations after changing the number and size of the signs the petitioner requested.

"I didn't think we needed those extra signs, but (Vice Mayor Gary Price) held his ground," Sorey said.

Business owners such as Atanassov can come out on the losing side as a result of the process.

Atanassov offered to ditch the umbrellas on his two tables at the last minute, making it easier for people to walk past even if it meant daytime visitors had to sit in the sun. He would have preferred removing some bushes, but was willing to meet in the middle.

"They still shot it down," Atanassov said. "What are you going to do?"

Councilman Bill Barnett maintains the city's code was not written in stone and that each petition should be viewed individually. That's a notion all on council said they agree with. Vetting each variance to the code or deviation to a site plan, such as in the case of RaceTrac, allows for a new business to come to the city through mutually beneficial compromises.

"Businesses need to know we're not just draconian in our enforcement of the rules. Because each situation is unique," Councilman Doug Finlay said. "We're looking for a judgement call on behalf of seven elected officials."

There is always the option to continue an item from one meeting to the next if council can't agree or thinks the petitioner needs to put more work in. But Sorey said adding more time to the approval process can hurt a business, which pays attorneys and architects to sit in on city meetings and can incur more costs with a delay.

Councilman Sam Saad said he'd rather see an item continued so council isn't rushing to make a decision.

"I don't like when we're sitting there and I'm furiously writing down notes and trying to come up with approval language," he said. "There are always third, fourth and fifth-level consequences we're not considering."

Councilman Gary Price said spending time to vet proposals makes the city more business friendly and that he's willing to listen to variances because he might change his mind. But he would rather see the code changed than have to justify approving too many variances.

Councilwomen Dee Sulick and Teresa Heitmann both said approving too many variances could change the character of the city of Naples and that the code exists to preserve it.

"Sometimes I think we use the variance process and almost never say no," Heitmann said.

Sulick said she is not in favor of sweeping changes to the code, which has stood the test of time in Naples and is the foundation for a strong community.

"What makes Naples unique and special is that we have a set of codes applied evenly across the board," she said. "Everyone who comes to us is looking for an exception to the code."

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