The January 3rd meeting of the Marco Island Planning Board turned into a tug of war between conflicting views concerning who should be responsible regarding a request for a variance for the proposed building of a private residence. A petitioner was requesting permission to intrude into a required 30’ buffer between any proposed structure and its rear property line. That rear property line abuts homes on Colonial Avenue, outside the private/gated community of Hideaway Beach.
Growth Management Director Daniel Smith was placed in the uncomfortable position of having to explain his statutory responsibility to defend the community’s Land Development Code, while listening to those attempting to justify the change due to past indiscretions regarding Hideaway Beach’s own PUD covenants and the confusion over who had overriding responsibility in regard to granting permission for changes.
Raymond Jean, the owner of the property, expressed his dissatisfaction with the fact that the Architectural Review Committee of Hideaway Beach had given permission for his plans and now the city was in effect nullifying that ruling.
Mr. Jean was seeking to add an encroachment into that buffer of approximately 85-89 feet long by 4 feet deep. That would give him an additional 331+/- square feet of pool decking on a home of approximately 10,000 square feet in size.
“We followed all the rules; this is not a people objection,” said Jean
Smith, in his report to the board, pointed out the difference between a side yard setback, which allows for certain encroachments and the definition of “buffers,” and the protection they provide to abutting neighborhoods. “This request, however, was to encroach into a landscape buffer, not a side yard setback. The ‘landscape buffer,’ which was required in the original approval of the Hideaway PUD was for the benefit of both the owner of the lot and the residents abutting the Hideaway PUD,” said Smith in his report to the board.
“A Landscape buffer according to the city code under 30.10 (c) means an area of land which is required to be set aside along the perimeter of a lot in which landscaping (existing, relocated or introduced) is used to provide a transition between, and to reduce the undesirable or incompatible impacts between differing land uses,” according to the staff report.
That same report from staff to the board went on to explain the standards for granting a variance are outlined in Section 30-65(g)(3) of the Land Development Code (“LDC”), as follows.
Standards for approval of a variance. Before any variance shall be recommended for approval to the city council, the planning board shall consider and be guided by the following standards in deciding:
- That there are special conditions and circumstances existing which are peculiar to the location, size and characteristics of the land, structure, or building involved.
- That there are special conditions and circumstances which do not result from the action of the applicant such as pre-existing conditions relative to the property which is the subject of the variance request.
- That a literal interpretation of the provisions of this LDC works an unnecessary and undue hardship on the applicant or creates a practical difficulty on the applicant.
- That the variance, if granted, will be the minimum variance that will make possible the reasonable use of the land, building or structure and which promote standards of health, safety or welfare.
- That granting the variance requested will not confer on the petitioner any special privilege that is denied by this LDC to other lands, buildings, or structures in the same zoning district.
- That granting the variance will be in harmony with the intent and purpose of this zoning code, and not be injurious to the neighborhood, or otherwise detrimental to the public welfare.
- That there are natural conditions or physically induced conditions that ameliorate the goals and objectives of the regulation such as natural preserves, lakes, golf course, or similar circumstances.
- And that the granting of the variance will be consistent with the comprehensive plan.
Based on those considerations, the staff found that the request did not meet those requirements and sent their report to the board for their action.
When the request for public comment came, abutting neighbors who initially were assumed to be in favor of the original request had shifted their opinions after seeing what an architectural rendering appeared to show how it would appear from their homes on Colonial Avenue.
The first to speak was Jolaynne Holmes who initially had spoken to the petitioner, “Mr. Jean has been very cordial to the neighbors, however, now that I’ve seen that photo of that cage, I’ve changed my mind. I disagree with this plan. When you purchase a piece of property you know what the guidelines are and should adhere to them.”
In addition to Holmes, Dwight Klett another abutting neighbor from Colonial Avenue came forward to object. “We moved in two years ago. We liked the tropical landscape behind us,” stated Klett. “The screen is the primary issue.”
Klett requested that the screening be lower than the two–story screen cage that was being proposed.
Several “design changes” were suggested from the dais to accommodate the petitioner from members of the board. On the suggestion of board member Jason Bailey, who is also a property owner in Hideaway Beach, along with Vice-Chair Claire Babrowski and Michael Finkle who reside within Hideaway. A short recess was approved to allow the petitioner to review his options.
“I appreciate everyone trying to redesign my home, but I want an answer today,” said Mr. Jean, after a suggestion that this be delayed a month. In the end, the board moved to approve the variance with the following conditions.
- Reduce pool cage to a one-story cage.
- To reduce the cantilever by 20 feet.
- To provide a six-foot opaque hedge along the fence line.
The board would vote unanimously 7-0 to approve the request with the attached requirements.