Agenda 02/28/2017 Item # 8A02/28/2017
EXECUTIVE SUMMARY
This item requires that all participants be sworn in and ex parte disclosure be provided by
Commission members. Recommendation to approve a Resolution of the Board of Zoning Appeals
of Collier County, Florida, for a Variance from Section 4.02.03.A, Table 4 of the Land Development
Code to reduce the minimum rear yard accessory structure setback line from 20 feet to 6.55 feet for
a swimming pool, spa, pool deck and stairs on a waterfront lot within the Residential Single -Family
(RSF-3) zoning district on property located at 342 Trade Winds Avenue, in Section 29, Township 48
South, Range 25 East, Collier County, Florida [VA-PL20160001181].
OBJECTIVE: To have the Board of Zoning Appeals (Board) review staff’s findings and
recommendations along with the recommendations of the Collier County Planning Commission (CCPC)
regarding the above referenced petition and render a decision regarding this Variance petition; and ensure
the project is in harmony with all the applicable codes and regulations in order to ensure that the
community's interests are maintained.
CONSIDERATIONS: The purpose of this petition is to request a reduction from LDC Section
4.02.03.A., Table 4, which requires that the minimum swimming pool and/or screen enclosure accessory
setback for single-family waterfront lots is 20 feet when the swimming pool deck exceeds 4 feet in height
above the top of the seawall. The seawall on this property is 3.31 feet NAVD with a pool deck that is
located at an elevation of 9.9 feet high. Thus, the pool deck is 6.59 feet above the seawall, which is 2.59
feet greater than what is permitted by the LDC in order to have a 10-foot setback.
The applicant states that the pool and deck plans submitted to Collier County contained the pool deck
elevation of 9.67 feet. The County erroneously issued a pool permit with a rear accessory setback of 10
feet versus the required 20 feet. The applicant built the swimming pool, spa, and pool deck utilizing the
10-foot accessory setback requirements erroneously provided on the building permit rather than the
required 20-foot accessory setback requirement. The pool deck encroaches 9.85 feet into the 20-foot
setback and the stairs encroach 13.45 feet.
According to the survey, the applicant built the stairs 3.45 feet into the erroneously provided 10-foot
setback. Per LDC 4.02.01.D.7, stairways shall not protrude over 3 feet into a required front, side, or rear
yard of a single-family dwelling; the stairs were approved at the 3.45-foot encroachment and thus they are
also included in this Variance request. Please note that the building permits, for both the home and the
pool, were permitted with inclusion of the stairs - as depicted on the survey. Overall, the applicant
requests to reduce the setback from 20 feet to 6.55 feet for the swimming pool, spa, pool deck, and stairs.
Since objections were received (see attached staff report), this item is not on the Summary Agenda.
FISCAL IMPACT: The County collects impact fees prior to the issuance of building permits to help
offset the impacts of each new development on public facilities. These impact fees are used to fund
projects identified in the Capital Improvement Element (CIE) of the Growth Management Plan (GMP) as
needed to maintain adopted Level of Service (LOS) for public facilities. Additionally, in order to meet
the requirements of concurrency management, the developer of every local development order approved
by Collier County is required to pay a portion of the estimated Transportation Impact Fees associated with
the project in accordance with Chapter 74 of the Collier County Code of Laws and Ordinances. Other fees
collected prior to issuance of a building permit include building permit review fees. Finally, additional
revenue is generated by application of ad valorem tax rates, and that revenue is directly related to the
value of the improvements. Please note that impact fees and taxes collected were not included in the
criteria used by staff and the Planning Commission to analyze this petition.
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GROWTH MANAGEMENT PLAN (GMP) IMPACT: The subject property is located in the Urban
Residential Subdistrict of the Urban Mixed Use District land use classification on the County’s Future
Land Use Map (FLUM). The purpose of this subdistrict is to provide for higher dens ities in an area with
fewer natural resource constraints and where existing and planned facilities are concentrated. The GMP
does not address individual Variance requests; the Plan deals with the larger issue of the actual use.
COLLIER COUNTY PLANNING COMMISSION (CCPC) RECOMMENDATION: This petition
was originally scheduled to be heard by the Collier County Hearing Examiner on October 27, 2016.
Because of increased public concern, in accordance with Section 2-87 of the Code of Laws and
Ordinances, this matter was heard by the CCPC on January 19, 2017 for a recommendation to the Board.
The CCPC heard testimony from the Applicant’s agent, neighbors, a neighbor’s attorney, and County
staff. In addition to staff stipulations, the CCPC added a condition to soft en exposed stem wall with
decorative cladding of landscaping. A motion was made by Commissioner Schmitt and seconded by
Commissioner Chrzanowski to recommend approval. The motion passed by a vote of 6-0.
LEGAL CONSIDERATIONS: The Petitioner is requesting a Variance from Section 4.02.03 A, Table 4
of the LDC to reduce the minimum rear yard accessory structure setback line from 20 feet to 6.55 feet for
a swimming pool, spa, pool deck and stairs on a waterfront lot within the Residential Single -Family
(RSF-3) Zoning District. The granting of such a Variance is permitted under LDC §9.04.02.
The attached staff report and recommendations of the Planning Commission are advisory only and are not
binding on you. All testimony given must be under oath. The Petitioner has the burden to prove that the
proposed Variance is consistent with all the criteria set forth below, and you may question the Petitioner,
or staff, to satisfy yourself that the necessary criteria have been satisfied. LDC Section 10.09.00 F. States
that “Upon consideration of the Planning Commission’s report, findings and recommendations, and upon
consideration of the standards and guidelines set forth [below], the Board of Zoning Appeals shall
approve, by resolution, or deny a petition for a Variance.” Should you consider denying the Variance, to
assure that that your decision is not later found to be arbitrary, discriminatory or unreasonable, the denial
must be based upon competent, substantial evidence that the proposal does not meet one or more of the
listed criteria below.
In granting any Variance, the Board of Zoning Appeals may prescribe the following:
1. Appropriate conditions and safeguards in conformity with the zoning code or other applicable County
Ordinances. Violation of such conditions and safeguards, when made a part of the terms under which the
Variance is granted, shall be deemed a violation of the zoning code.
2. A reasonable time limit within which the action for which the Variance required shall be begun or
completed or both.
Criteria for Variances
1. There are special conditions and circumstances existing which are peculiar to the location, size, and
characteristics of the land, structure, or building involved.
2. 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.
3. A literal interpretation of the provisions of the LDC work unnecessary and undue hardship on the
applicant or create practical difficulties on the applicant.
4. 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.
5. Granting the Variance requested will not confer on the petitioner any special privilege that is denied by
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these zoning regulations to other lands, buildings, or structures in the same zoning district.
6. Granting the Variance will be in harmony with the intent and purpose of the LDC, and not be injurious
to the neighborhood, or otherwise detrimental to the public welfare.
7. There are natural conditions or physically induced conditions that ameliorate the goals and objectives
of the regulation, such as natural preserves, lakes, golf course, etc.
8. Granting the Variance will be consistent with the GMP.
This item has been approved as to form and legality, and requires a majority vote for Board approval.-
SAS
RECOMMENDATION: Staff concurs with the recommendations of the CCPC and further recommends
that the Board of Zoning Appeals approves VA-PL20160001181, subject to the following conditions:
1. All other state or federal permits must be obtained before commencement of the development.
2. Pursuant to Section 125.022(5) F.S., issuance of a development permit by a County does not in
any way create any rights on the part of the applicant to obtain a permit from a state or federal
agency and does not create any liability on the part of the County for issuance of the permit if the
applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal
agency or undertakes actions that result in a violation of state or federal law.
3. Upon demolition or destruction of 50 percent or more of the actual replacement value of the
swimming pool, spa, pool deck, and stairs, this Variance will be void and any reconstruction shall
meet setback requirements at the time of a building permit.
4. The owner shall apply decorative cladding or install a berm or landscaping or combination
thereof, to shield the view of the portion of exposed stem/concrete retaining wall so that there is
only a maximum of four feet of stem/concrete retaining wall exposure.
Prepared by: Fred Reischl, AICP, Principal Planner, Zoning Division
ATTACHMENT(S)
1. Resolution initialed by SAS - 012617 (PDF)
2. Staff Report - signed (PDF)
3. application (PDF)
4. Legal Ad - Agenda ID 2623 (PDF)
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COLLIER COUNTY
Board of County Commissioners
Item Number: 8.A
Doc ID: 2623
Item Summary: ***This item to be heard at 1:00 p.m.*** This item requires that all participants
be sworn in and ex parte disclosure be provided by Commission members. Recommendation to approve
a Resolution of the Board of Zoning Appeals of Collier County, Florida, for a Variance from Section
4.02.03.A, Table 4 of the Land Development Code to reduce the minimum rear yard accessory structure
setback line from 20 feet to 6.55 feet for a swimming pool, spa, pool deck and stairs on a waterfront lot
within the Residential Single-Family (RSF-3) zoning district on property located at 342 Trade Winds
Avenue, in Section 29, Township 48 South, Range 25 East, Collier County, Florida [VA-
PL20160001181].
Meeting Date: 02/28/2017
Prepared by:
Title: Planner, Principal – Zoning
Name: Fred Reischl
01/23/2017 1:42 PM
Submitted by:
Title: Division Director - Planning and Zoning – Zoning
Name: Michael Bosi
01/23/2017 1:42 PM
Approved By:
Review:
Growth Management Department Judy Puig Level 1 Division Reviewer Completed 01/31/2017 9:09 AM
Zoning Michael Bosi Additional Reviewer Completed 02/01/2017 9:21 AM
Zoning Ray Bellows Additional Reviewer Completed 02/01/2017 3:58 PM
Growth Management Department Jeanne Marcella Level 2 Division Administrator Completed 02/06/2017 1:20 PM
Growth Management Department James French Additional Reviewer Completed 02/07/2017 10:04 PM
County Attorney's Office Scott Stone Level 2 Attorney Review Completed 02/09/2017 4:35 PM
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 02/13/2017 1:24 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 02/15/2017 10:02 AM
Budget and Management Office Mark Isackson Additional Reviewer Completed 02/17/2017 12:21 PM
County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 02/19/2017 10:18 AM
Board of County Commissioners MaryJo Brock Meeting Pending 02/28/2017 9:00 AM
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8.A.a
Packet Pg. 182 Attachment: Resolution initialed by SAS - 012617 (2623 : Trade Winds Variance)
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Packet Pg. 185 Attachment: Resolution initialed by SAS - 012617 (2623 : Trade Winds Variance)
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Packet Pg. 186 Attachment: Staff Report - signed (2623 : Trade Winds Variance)
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Packet Pg. 187 Attachment: Staff Report - signed (2623 : Trade Winds Variance)
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Packet Pg. 188 Attachment: Staff Report - signed (2623 : Trade Winds Variance)
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Packet Pg. 191 Attachment: Staff Report - signed (2623 : Trade Winds Variance)
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Packet Pg. 200 Attachment: Staff Report - signed (2623 : Trade Winds Variance)
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Packet Pg. 202 Attachment: Staff Report - signed (2623 : Trade Winds Variance)
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Packet Pg. 206 Attachment: Staff Report - signed (2623 : Trade Winds Variance)
8.A.c
Packet Pg. 207 Attachment: application (2623 : Trade Winds Variance)
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Packet Pg. 208 Attachment: application (2623 : Trade Winds Variance)
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Packet Pg. 209 Attachment: application (2623 : Trade Winds Variance)
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Packet Pg. 222 Attachment: application (2623 : Trade Winds Variance)
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Packet Pg. 223 Attachment: application (2623 : Trade Winds Variance)
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Packet Pg. 224 Attachment: Legal Ad - Agenda ID 2623 (2623 : Trade Winds Variance)
Patricia L. Morgan
From: OchsLeo <LeoOchs@colliergov.net>
Sent: Monday, February 27, 2017 2:20 PM
To: Patricia L. Morgan; WilkisonDavid; Bosi, Michael
Cc: Casalanguida, Nick
Subject: FW: Variance Petition VA-PL20160001181
Attachments: 20170112 marks ltr reischl.pdf; Collier County Commissioners Zoning Hearing
Presentation - 2-26-2017 --FINAL (1).pdf
FYA
Leo E. Ochs,Jr.
Collier County Manager
leoochs@colliergov.net
239.252.8383
From: pneale@patrickneale.com [mailto:pneale@patrickneale.com]
Sent: Monday, February 27, 2017 2:06 PM
To:TaylorPenny; McDanielBill; SaundersBurt; SolisAndrew; FialaDonna
Cc: OchsLeo; KlatzkowJeff; karen@patrickneale.com; khall@patrickneale.com
Subject: Registered: Variance Petition VA-PL20160001181
REGISTERED EMAIL ( ,Magi
CERTIFIED DELIVERY, CONTENT& TIME
This is a Registered Email® message from Patrick Neale.
There are two documents attached to this email.The first is a letter from me to Fred Reischl dated January 10, 2017 that
does not appear to have been included in the BCC packet. I am sure that it was an oversight, but I request that this be
made part of the record.
There is also attached a presentation that my client, Mr. George Marks, will be making at tomorrow's hearing and which
should also be made part of the record of this case.
Best regards,
Patrick H. Neale
Patrick Neale &Associates
Attorney at Law
Primary Office:
5470 Bryson Court, Suite 103
Naples, FL 34109
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(By Appointment Only)
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Mailing:
P.O. Box 9440
Naples, Florida 34101-9440
January 10, 2017
Mr. Fred Reischl
Senior Planner
PATRICK
ALASSOCIATES
Patrick H. Neale
Attorney at Law
Collier County Growth Management Department
Zoning Division
2800 Horseshoe Drive
Naples, FL
RE: Petition VA-PL20160001181 — 342 Trade Winds Avenue
Dear Fred:
Naples:
5470 Bryson Court Suite 103
Naples, Florida 34109
Marco Island (by appointment):
950 North Collier Blvd. Suite 400
Marco Island, Florida 34145
I represent Mr. and Mrs. George Marks, the owners of 319 Lagoon Avenue, Naples, Florida 34108,
property owners who will be substantially and adversely impacted by the variance requested in the above
petition should it be granted. I also represent several other property owners in the area who will also be
adversely impacted by the proposed variance should it be granted. My clients strongly oppose the
proposed variance and disagree with the staff recommendation for reasons which will be set out below.
This letter is to provide additional legal basis for the denial of the Variance. It is requested that this letter
be provided to each member of the Planning Board prior to the hearing set for January 19, 2017.
As the County is aware, the controlling case law for variances is Indialantic v. Nance, 400 So. 2d 37
(Fla. Dist. Ct. App. 5th Dist. 198 1) as adopted by the Florida Supreme Court in Nance v.
Indialantic, 1982 Fla. LEXIS 2530 (Fla. 1982). The standard set out in this case is that "[a]
prerequisite to the granting of a hardship zoning variance is the presence of an exceptional and
unique hardship to the individual landowner, unique to that parcel and not shared by other
property owners in the area." There is nothing about the parcel or this landowner that is unique,
other than the fact the County issued a building permit based upon plans that did not meet the
standards set out in the Collier County Land Development Code.
In the balance of this letter, I will comment upon the various criteria set out in LDC section
9.04.03 and incorporated into the staff report.
a. Are there special conditions and circumstances existing, which are peculiar to the
location, size and characteristics of the land, structure or building involved?
Staff: Yes. Per the applicant, the pool shell, retaining wall and stairs are constructed. The
applicant commenced construction under building permit, PRBD2015092870601, with an
incorrectly cited rear accessory pool setback of 10 feet versus the required 20 feet. The
applicant abided by the incorrectly cited rear accessory 10 -foot pool setback for the
swimming pool, spa, and pool deck. The stairs off the pool deck do encroach 3.5 feet into
the erroneously provided 10 -foot setback; however they were permitted with the
swimming pool, spa, and pool deck.
Opposing Position: The conditions and circumstances set out by the Staff are those
caused by the actions of the petitioner. The failure of the petitioner to follow the
Mr. Fred Reischl
January 11. 2017
Page 2 of 4
requirements of the Building Code and band Development Code does not constitute
a special condition or circumstance that would give rise to grounds for a variance.
b. Are there special conditions and circumstances, which do not result from the action
of the applicant such as pre-existing conditions relative to the property, which are
the subject of the Variance request?
Staff: Yes. The applicant applied and received a pool permit from the County citing an
incorrect rear accessory pool setback. The applicant proceeded, and followed, with
provided setbacks unaware of any violations. Due to this error, the subject structure is
currently encroaching 6.55; more specifically, the pool, spa, pool deck encroach 9.83 feet,
resulting in a 10.17 rear yard setback, and the stairs encroach 13.45 feet, resulting in a
6.55 -foot encroachment.
Opposing Position: Any and all "special conditions and circumstance" result from
the negligence of the applicant. The fact that a permit was issued does not excuse the
applicant from compliance with the relevant laws.
c Will a literal interpretation of the provisions of this zoning code work unnecessary
and undue hardship on the applicant or create practical difficulties for the applicant?
Yes. Per the applicant, the pool is already constructed and to abide by the required
accessory 20 -foot setback would require the applicant to remove the existing pool and
replace it at an estimated expense of $50,000. The applicant relied on the erroneously
issued pool permit with a 10 -foot rear accessory setback in constructing the existing pool
structure.
Opposing Position: The hardship was caused by the negligence of the applicant
and/or their contractor. While it may create practical difficulties, that is not within
the purview of the Planning board or hoard of Zoning appeals to relieve the
applicant from a problem of their own making.
d. Will the Variance, if granted, be the minimum Variance that will make possible the
reasonable use of the land, building or structure and which promote standards of
health, safety and welfare?
Yes. The applicant is only seeking the minimum variance which will allow the pool deck,
pool, spa, and stairs to remain.
Opposing Position: The property is still completely usable without the granting of
the variance. The applicant will only have to construct the pool deck., spa and stairs
in a manner that complies with the provisions of the Land Development Code.
e, Will granting the Variance confer on the applicant any special privilege that is
denied by these zoning regulations to other lands, buildings, or structures in the same
zoning district?
Yes. The applicant will be able to retain a decreased accessory rear yard setback for a pool
Mr. Fred Reischl
January 11. 2017
Page 3 of 4
deck that exceed 4 feet in height above the seawall. However, it should be noted that the
applicant relied on the County issued permit which cited incorrectly the accessory rear
swimming pool and/or screen enclosure setback.
Opposing Position: The basic principle of variance procedure as embodied in the
LDC and the applicable case law is that a variance should NOT give the applicant
any special privilege. This would provide the applicant with a special privilege and
diminish the value of surrounding properties. The variance will impede the views of
all surrounding properties and set a dangerous precedent which could allow other
property owners to receive the same variance. thus making the LDC a sham.
f Will granting the Variance be in harmony with the general intent and purpose of
this Land Development Code, and not be injurious to the neighborhood, or
otherwise detrimental to the public welfare?
Yes. Staff is of the opinion that the proposed Variance would legitimize the existence of
the pool and pool deck that are currently under construction.
Opposing Position: The staff is arguing that this will legitimize the existence of a non-
conforming structure that has not been issued a certificate of occupancy and is in
violation of the LDC.That is not in harmony with the general intent and purpose of
the LDC. Further, this is in 'jurious to the neighborhood in that it impedes, impairs
and interferes with the views of the adjacent lot owners.
g. Are there natural conditions or physically induced conditions that ameliorate the
goals and objectives of the regulation such as natural preserves, lakes, golf courses,
etc.?
Yes. The applicant states that variations in seawall height in this location do not create a
uniform height for all houses and therefore create different pool deck height requirements
over 4 feet of the seawall.
Opposing Position: The standard in the LDC is set so that there is uniformity in the
elevation above the seawall. The height above the seawall is the standard. There are
no conditions natural or physically induced which justify the granting of this
variance.
IL Will granting the Variance be consistent with the Growth Management Plan?
Approval of this Variance will not affect or change the requirements of the Growth
Management Plan.
Opposing Position: The approval of the Variance will not impact the GNIP.
Based upon the foregoing response to the Staff Report and Recommendation and testimony to be
presented at the hearing on January 19, 2017, my clients respectfully request that the Planning
Board deny this application for a variance. The variance as requested does not meet the legal
criteria for the granting of a variance.
ZD 0
Mr. Fred Reischl
January 11. 2017
Page 4 of 4
I appreciate this opportunity to present my clients' position and look forward to appearing at the
hearing on January 19, 2017 to present these arguments to the Planning Board, respond to their
questions and get my clients' testimony on the record. Please contact me if you have any
questions or comments.
Sincerely,
atric H. Neale
Cc: Clients
PHN/Ps
Collier County Commissioners Meeting
February 28, 2017 @ 1:00
Zoning Variance Hearing
342 Tradewinds Ave .
Presentation of George Marks in opposition to the
granting of a zoning variance for 342 Tradewinds
Ave.
Collier County Commissioners Zoning Hearing Presentation
George Marks – 319 Lagoon Ave, Vanderbilt Beach, Naples, FL
February 28, 2017 @ 1:00 PM (Time certain)
I would like to thank the Commissioners for the opportunity to Present our concerns
I am here in opposition to the request for a Zoning Variance from the Collier County Land Development Code.
Originally, I was in opposition to the variance because I did not understand why FIRST the County Staff, then
Second, the Planning Commission would recommend granting this variance without the conditions of a legal
hardship being met. As you know, a hardship is a legal standard that an applicant is required to meet in
order to be granted a variance.
I have worked closely with Mr Neale and he will present in more detail why the conditions of a legal hardship
have not been met.
I am going to focus on WHY the PC Hearing transcribed Testimony as well as the Planning and Building Staff
Recommendations REPORT that are a basis of your consideration are inaccurate and misinformed.
At the PC, Mr. Strain asked the County Attorney if the granting of this variance would set a precedent and the
County Attorney answered “NO”. That is a standard Attorney answer on the basis that no two properties are
ever exactly the same.
I offer a portion of the transcript as Exhibit “B” (to avoid boring you with the entire transcript)
CHAIRMAN STRAIN: Okay. I have a question, a couple questions. First is the County Attorney's Office in
regards to the -- now, this setting a precedent. Could one of the county attorneys opine on whether this does or
not?
MR. KLATZKOW: Does it set a precedent? No.
However, Mr. Shapiro just spent 20 minutes showing you pictures of an existing pool (That existed PRIOR to
the current zoning and is an EXCELLENT example of why the zoning was changed) so while the County
Solicitor will say that a variance will not be set, I think we saw today that in practicality, that is not always
true as it was the ONLY basis for Mr. Shapiro’s argument.
The photo below is a picture of the pool that Mr. Shapiro used as a basis of his argument for the granting of
the variance. This pool is +/- 6’-0”” above the seawall and +/- 12’-0” from the edge of the seawall. The
variance is asking for a variance to 6.36 feet (2.36 ft above the seawall) and 10.17 feet from the Seawall when
20’-0” is required. This is a 59% variance in height and 49% variance in depth from the seawall. This is NOT a
diminimus variance.
I present this photo looking WEST (down the canal) for your consideration. This photo is of the pool that Mr.
Shapiro used as a basis of his argument. This photo was taken +/- 15’-0” from the edge of the seawall from
the easterly property line and you can clearly see how the view is diminished or blocked. It would be total
blocked at 20’0”.
I present the following photo looking EAST of the same pool. This photo was taken +/- 20-0” from the edge
of the seawall from the westerly property line and you can clearly see how the view is diminished or blocked.
20’-0” is the distance from the seawall required by the Zoning code for a pool deck exceeding 4’-0” above the
seawall. I am standing on the adjacent patio, in compliance with the LDC.
CLEARLY – the County planners had a strong reason for creating the zoning ordinance that they did which
limited the height of a pool relative to the seawall and the distance from it.
The REASON was to PRESERVE the view corridor for ALL property owners and the granting of this variance be
in direct opposition to the County’s Zoning laws and detrimental to the overall neighborhood.
I have prepared a few diagrams illustrating the following:
1. The setbacks and dimensions that are required by the zoning code
2. The setbacks that are in place for the pool that Mr. Shapiro is using as a basis for his request
3. The setbacks that exist for the pool at 342 Tradewinds on which is the basis of this hearing
Please see the attached sketch illustrating the dimensions of the matter at hand today.
As you can see, not enforcing zoning laws can create disturbing results if not administered firmly and fairly.
Granting this variance would significantly violate the intent of the zoning code and have a NEGATIVE impact
on adjacent property values.
Collier County LDC requirements
The current Pool height is 6.36feet above the seawall.
This is what is allowed if the pool is 4'-0" above the seawall
If a POOL is less than 20'-0" from the Seawall
it must be less than 4'-0" above the top of the seawall.
This is what currently exists
The STAFF report
Let me now focus on the STAFF report and its recommendations and why they are seriously flawed. I will do
my best to be brief, but thorough.
--I have included the Staff report as Exhibit “A”
I will discuss the Items one by one, since each one is a legal argument for a variance.
a. Are there special conditions and circumstances existing which are peculiar to the location, size
and characteristics of the land structure or building involved.
STAFF answer – “Yes, per the applicant the pool shell, retaining wall and stairs are constructed”
The proper answer is adamantly NO – no special circumstances existed PRIOR to the construction
of the pool and the applicant cannot create THE REASON for a variance then be granted a variance.
If that were the case, then why have a zoning code or building code. I will address the STAFF’s and
PC reason for their respective recommendations later as part of the PC transcript.
b. Are there special conditions and circumstances, which do not result from the action of the
applicant such as pre-existing conditions relative to the property, which are the subject of the
Variance request?
STAFF Answer – “Yes – The applicant applied and received a pool permit from the County citing
an incorrect rear accessory pool setback.
Let me present to you a section of the Florida Building Code 2014 which is Section 105.4.1
“A permit issued shall be construed to be a license to proceed with the work and not as
authority to violate, cancel, alter or set aside any of the provisions of the technical codes, nor
shall issuance of a permit prevent the building official from thereafter requiring a correction of
errors in plans.”
Let me present to you a section of the Collier County Land Development code which is CHAPTER
10.02.06 - Requirements in Permits – Section 1.c states”
i.
Statements made by the applicant on the building or land alteration permit
application shall be deemed official statements. Approval of the application by
the County Manager or his designee shall, in no way, exempt the applicant
from strict observance of applicable provisions of this Land Development Code
and all other applicable regulations, ordinances, codes, and laws.
ii.
A building or land alteration permit issued in error shall not confer any rights
or privileges to the applicant to proceed to or continue with construction, and
the county shall have the power to revoke such permit until said error is
corrected.
c. Will a literal interpretation of the provisions for this zoning code work create unnecessary and
undue hardship on the applicant or create practical difficulties for the applicant?
STAFF answer – YES – Per the applicant, the pool is already constructed………..at an estimated
expense of $50,000.
NO – How many times can the staff say, it already exists? This error could have been caught and
corrected BEFORE the house was built if a Certified Site Plan had been completed, thereby
minimizing the repair costs.
The estimated total value of the house is $2.5-3.0 million dollars. The total cost to make the repair
of $50,000 while significant, is small relative to the overall value of the property and more
importantly the adjacent properties. Had the correction been performed when the owner and
contractor were notified in April 2016, the cost to correct would be significantly lower.
However, the contractor elected to instead provide the County an Affadavit as a COST SAVING
measure and took on any risk. How can the Applicant then claim a financial hardship and worse,
how can the County grant such a variance based on financial hardship?
***The AFFADAVIT signed by the contractor is attached on the next page
The county received from the contractor a signed Affadavit in Lieu of Certified Site Plan, which
means the contractor did not wish to submit a Certified Site Plan. I’m not sure why, except to save
money as it would be good building practice or I offer maybe the contractor and Owner knew it
was wrong and hoped no one would notice?
The AFFADAVIT certifies that the Contractor will “IMMEDIATELY remediate the nonconformity at
no expense to Collier County Government”. If the contractor was notified of the error in APRIL
2016, why wasn’t the error corrected then? How then does the contractor continuing to work
constitute a financial hardship worthy of a variance that is detremental to the neighborhood and
potentially sets up the community for future infractions of the Zoning Code.
Since the pool is far in excess of the allowed setbacks, why wouldn’t the county then just ENFORCE
the Affadavit which grants the County NO FINANCIAL EXPOSURE OR LIABILITY and have the pool
design corrected to be within the Zoning Code?
So I am confused again ------Why then doesn’t the County then just enforce the Zoning Code and/or
enforce the AFFADAVIT instead of us spending THOUSANDS of dollars to defend our
neighborhood?
Why wait SIX (6) months until October 2016 to actually apply for the variance?
d. Will the variance, if granted be the minimum variance that will make possible the reasonable use
of the land, building or structure and which promote standards of health safety and welfare?
STAFF answer – YES – The applicant is only seeking the minimum variance which will allow the pool deck,
pool, spa and stairs to remain.
We agree that it is the minimum, but the staff answer does not address the standards of health, safety and
welfare…..
e. Will granting the variance confer on the applicant any special privilege that is denied by these
zoning regulations to other lands, buildings or structures in the same zoning?
STAFF Answer – Yes, The applicant will be able to retain a decreased accessory rear yard setback for a
pool…….. However, it should be noted that the applicant relied on the county issued permit which cited
incorrectly the accessory rear swimming pool and/or screen enclosure setback?
The applicant will CERTAINLY be granted a privilege not available to other property owners. The fact that
the county approved an erroneous site plan is a NON-FACTOR for FOUR (4) reasons
1) Because the Contractor elected to not perform a Certified Site Plan in April 2016 (time of shell
completion), which would have identified the PROPER SETBACKS and alerted the contractor of the
error at a time when the correction was easily performed.
2) The County Land Development Code CLEARLY states that the County is not responsible for errors
made by the contractor (See Item b. above)
3) The building permit issued on Jan 27, 2016 states “Per Collier County Ordinance No. 2001-01, as it
may be amended, all work must comply with all Applicable laws, codes, ordinances and any
additional stipulations or conditions of this permit.”
A copy of the Pool building permit is attached below.
4) The contractor provided an AFFADAVIT in Lieu of a Certified Site Plan (Exhibit P-x) which states
that they will IMMEDIATLEY remediate any non-conformity at no expense to Collier County
Government.
***The Building Permit is attached on the next page
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
PERMIT
PERMIT #: PRBD2016010076701 PERMIT TYPE: PL
ISSUED:BY:APPLIED DATE:01-12-16 APPROVAL DATE: 01-27-16
MASTER #:COA:
JOB ADDRESS:342 Trade Winds AVE
JOB DESCRIPTION: CONSTRUCTION OF 387 SQ FT IN-GROUND POOL &
5' 8" X 5' 8" ZERO EDGE SPA, 3 HP VS PUMP -
ALARMS (PRBD20150928706)
342 TRADEWINDS AVE LOT 11
JOB PHONE:
SUBDIVISION #:BLOCK:LOT:
FLOOD MAP:ZONE:ELEVATION:
FOLIO #: 27585200007 SECTION-TOWNSHIP-RANGE: 29-48-25
OWNER INFORMATION:CONTRACTOR INFORMATION:
STONE-JESKE TR, ROXANNE B ROXANNE B
STONE-JESKE TRUST UTD 8/10/05
531 TURTLE HATCH LN
NAPLES , FL 34103-
MORRISON ALUMINUM CONSTRUCTION INC
(DBA) MAC CUSTOM POOLS-ALUMINUM
1020 SE 12TH AVE
CAPE CORAL, FL 33990--
CERTIFICATE #:: C33218 PHONE:
FCC CODE:
CONSTRUCTION CODE: 0218
JOB VALUE: $74,000.00 TOTAL RES SQFT: 0 TOTAL COMM SQFT: 0
SETBACKS FRONT: 30'REAR: 10' Accessory LEFT: 7.5'RIGHT: 7.5'
SEWER:WATER:
CONTACT NAME:
CONTACT PHONE:
Per Collier County Ordinance No. 2002-01, as it may be amended, all work must comply with all applicable laws, codes, ordinances, and any additional
stipulations or conditions of this permit. This permit expires if work authorized by the permit is not commenced within six (6) months from the date of
issuance of the permit. Additional fees for failing to obtain permits prior to the commencement of construction may be imposed. Permittee(s) further
understands that any contractor that may be employed must be a licensed contractor and that the structure must not be used or occupied until a
Certificate of Occupancy is issued.
NOTICE: PRIOR TO THE REMOVAL OF ASBESTOS PRODUCTS OR THE DEMOLITION OF A STRUCTURE, FEDERAL
AND STATE LAWS REQUIRE THE PERMITTEE (EITHER THE OWNER OR CONTRACTOR) TO SUBMIT A NOTICE OF
THE INTENDED WORK TO THE STATE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP). FOR MORE
INFORMATION, CONTACT DEP AT (239) 344-5600.
In addition to the conditions of this permit, there may be additional restrictions applicable to this property that may be found in
the public records of this county, and there may be additional permits required from other governmental entities such as water
management districts, state agencies, or federal agencies.
WARNING TO OWNER: YOUR FAILURE TO RECORD A NOTICE OF
COMMENCEMENT MAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
TO YOUR PROPERTY. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH
YOUR LENDER OR AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF
COMMENCEMENT.
I have attached photos of a few pools currently being constructed or recently completed that ALL appear
to comply with the proper zoning.
I have also provided photos of the pool in question so you may see the significant differences.
f. Will granting the variance be in harmony with the general intent and purpose of this Land Use
Code and not be injurious to the Neighborhood or otherwise detrimental to the public welfare.
STAFF Answer - YES – The staff is of the opinion that the proposed variance would legitimize the existence of
the pool and pool deck that are currently under construction?
I am confused - How does “LEGITIMIZING the existence of the pool” make it in harmony with the general
intent of the Land Development Code when it totally ignores the LDC?
g. Are there natural conditions or physically induced conditions that ameliorate the goals and
objectives of the regulation such as natural preserves, lakes golf course, etc.?
STAFF answer – Yes. The applicant states that variations in seawall height in this location do not create a
uniform height for all house and therefore create different pool deck heights.
The current Seawall height is approximately 1’-0” higher than the neighbors on either side. Had they have
been using a lower seawall this pool would be actually MORE of a violation of the zoning code. See photos.
i. Will Granting the variance be consistent with the Growth Management Plan?
STAFF answer – Approval of this variance will not affect or change the requirements of the Growth
Management Plan?
No comment.
PLANNING COMMISSION TRANSCRIPT
Let’s review comments based on the Planning Commission Transcript. First a few facts.
1. The County Staff erroneously approved the site plan. However, we have proven that should not
be a factor in the decision to grant this variance
2. The county staff provided a report that we have shown is in error and does not support a
hardship.
3. The County Planning Commission, CHAIRED by the County Staff recommended the same be
approved based on a flawed Staff report that does not legally support a hardship.
I offer the PC transcript as Exhibit B, which is attached for your review (Anything in italics, represents a
phase taken verbatim from the PC hearing transcript)
1. Commissioner Ebert – Fred, you said this is a financial hardship………. Well, I mean we always use
money, you know in this stuff. Like I say I don’t feel it should be up to the owner to have to pay….”
Mr. Resichl – That our standard answer that, yes, you can proceed at your own risk pending the outcome of
the -----in this case was the HEX and not the Board of Commissioners.
If the owners and contractor jointly “Proceeded at their own risk”, how can they NOW complain
that it is a financial hardship because the house is in place.
Additionally, The owner has recourse against their design professionals the architect, site engineer, etc.
which all should have Errors and Omissions Insurance that should cover this expense, so this is NOT a
financial hardship case.
2. In response to how much of the work was in place…
“Mr. Jenks - ---We continued with the house at our own risk”
It has since been determined that the Pool contractor, who was a sub to Mr. Jenks, did not wish to provide
a Certified Site Plan and instead provided the Affadavit. If they continued at their own risk, how can that
then be the basis of a financial hardship when they have made no effort to mitigate their damages for a
situation they created. They waited SIX(6) months to even apply for a variance.
3. Mark Strain (County Staff and PC Chairman Summary and suggested motion) – After 40 minutes of
presentation, Mr. Strain gave the following summary) Mr. Strain’s quotes are shown in italics and
highlighted
“CHAIRMAN STRAIN: Okay. I have one item I'd like to discuss.
CHAIRMAN STRAIN: Mike or Fred, would you put what I just handed you on the overhead. You need to back
off a little bit. Keep going. Keep going. Right there. So we can read the whole thing.
Mr. STRAIN came prepared to put this section of the code on the overhead and Mr. Reischl read the
section aloud.
CHAIRMAN STRAIN: Section 9.04.03 is our criteria for variances. You've heard today that there are eight
criteria; there are. And we've had legal counsel advise us from the opposition side to address their position on
those eight criteria.
Mr Neale, a respected Land Use attorney in Collier County advised the County that based on their own
criteria that there was NO LEGAL BASIS for the granting of a variance.
CHAIRMAN STRAIN: Also, a case was referred to us, an old case from a 1982 activity. But we here -- as that
attorney, even the opposition attorney and as staff has opined today, we're here to adhere to the Land
Development Code.
The Land Development Code requires a 20’-0” setback when the pool deck is more than 4’-0” above the
seawall. The LDC is VERY clear on this matter.
This is what was on the piece presented by the Mr. Strain paper –
CHAIRMAN STRAIN: The Land Development Code says this in the beginning of the criteria for variances:
"Findings: Before any variance shall be recommended for approval to the Board of the Zoning Appeals,
the Planning Commission shall consider and be guided by the following standards in making a determination."
Mr Strain manipulated those words to say that he could do whatever he wanted and that the LDC was a
“SUGGESTION”. Do the Commissioners want to allow every real estate developer to treat the LDC code
as a loose “Suggestion”?
CHAIRMAN STRAIN: So while we've heard that they're hard and fast rules, you've got to show a hardship, it
can't be this kind of hardship, maybe so, but at the same time we shall consider those and be guided by them. That
means it's not mandatory.
I’m Confused again…. So Mr. Strain admitted that there is NO HARDSHIP AS A BASIS FOR
GRANTING A VARIANCE, yet he recommends one anyway based on the fact that the LDC is just a
suggestion? A Hardship is the legal standard for the granting of a variance. It is the ONLY standard for
which a Variance should be granted. We must be speaking about driving on the A1 Interstate in Italy where
the speed limit is “just a suggestion”. I doubt the Commissioners want the county run in this manner. As a
resident of Vanderbilt Beach, we REALLY need to be diligence on EVERY building permit in our
community….and that is why I am here today.
CHAIRMAN STRAIN: And, Mike, if you read this differently as Zoning Director, please let me know. But it's my
understanding that it means what it says, that we're not bound by those eight items, but they are for consideration.
MR. BOSI: My understanding would be -- the interpretation that you've adopted would be my
understanding; that these are the guidelines and with that emphasis upon the guidelines .
So Mr Bosi, who works closely with Mr. Strain is directed (asked) to verify Mr. Strain’s outrageous
comment? That does not seem proper to me in a public forum.
CHAIRMAN STRAIN: Okay. And with that in mind, I have -- I've listened to everything, and I've certainly tried to
do all the research I can to understand how this happened. I can't see the benefit to force someone to tear down a
home such as this. There's been no shown malicious intent in this.
I have no idea how Mr. Strain could have come to that conclusion. The Property owners did not say one
word during the hearing. After the hearing, I offered the owners the opportunity to speak with me and
discuss a compromise and they decided to do that in the hallway after the hearing.
However, the conversation was very short. I was immediately told “If you are not willing to discuss leaving
the pool exactly where it is, there is nothing to discuss. My response was “Oh so you really don’t care about
complying with the zoning, you just want what you want?”
Since April 2016, the owners have made NO attempt to correct the situation when they could have easy
done so before the house was built. I disagree with Mr. Strain’s statement.
Additionally, after NOT working on the pool for TEN (10) months they started working on the pool again
on Saturday, February 25th? Why 3 days PRIOR to the hearing? Did they have information that lead
them to believe that this variance would be granted?
One of the PC discussion comments was that they would NEVER be able to get a piece of construction
equipment behind the pool to remove it ---as another reason for their hardship.
I offer the following picture that disputes that comment and shows the neighbors contractors currently
working on the pool. This picture was taken on Saturday, February 25th.
Please note the piece of equipment, but also how HIGH and imposing that wall is relative to an adult person
and it is only 6.67 feet from the sea wall at the stair location
CHAIRMAN STRAIN: It was an -- it was a human error. It was a mistake made by multiple parties.
CHAIRMAN STRAIN: To take them to task for this for the cost that it would require for an item that does not set
a precedent I don't think is necessary.
Note that Mr. Strain specifically asked the County Solicitor to state that this would not set a precedent, but
we have already discussed this issue.
CHAIRMAN STRAIN: Now, if we can show they purposely had misled the county, this was done intentionally, I'd
say then whatever they deserve they deserve in regards to correcting it.
Here, I am confused again and I cannot prove anything. However, since when is “intent” an issue in a
Zoning hearing? So if you kill someone with your car on RT 41, you will likely go to jail for Manslaughter
whether you “intended to do so or not”.
CHAIRMAN STRAIN: But I have looked at all the records. I have looked at them probably more thoroughly
than anybody in this room, and I can assure you nothing like that came out of any of those records. And they're
records that this panel doesn't even have access to. They're in the county records department. I've pulled all the
folders.
Again, I am confused --Mr Strain points out that he has reviewed EVERY folder, so I am sure he saw the
AFFADAVIT signed by the contractor. Why does Mr. Strain then recommend approving the variance
when as a COUNTY STAFF member, he should have acted on the AFFADAVIT or recommended that
someone else do so and have the pool corrected to the LDC standard?
We have already shown that “every other” property owner in Vanderbilt Beach is complying with the
LDC? I did not measure every pool currently under construction.
CHAIRMAN STRAIN: There's nothing there that shows malicious intent.
CHAIRMAN STRAIN: In fact, if anything, they were trying to continually keep up with things they needed to do
to make sure their approvals were consistent and reviewed by the county.
Confused-- If they were TRULY trying to keep up with everything, they would have directed their
contractor to correct the pool in April 2016. Instead, they did not even apply for the variance until SIX (6)
months later and were actively working on continuing to build the pool this past weekend PRIOR to this
hearing. I’m confused.
Also, if the applicants we working CLOSELY WITH THE COUNTY STAFF at each step, why then are we
here at this zoning hearing? They should have been directed to make the change immediately
So I certainly think that the variance is warranted in this case, whether the variance is
24 -- two-and-a-half feet -- yeah, two-and-a-half feet or 18 inches. Either way, it really doesn't matter. The pool's
there, and it should be approved.
So we wasted MANY MANY hours and THOUSANDS of legal dollars and Mr. Strain states, “it really
doesn’t matter?” He just ignored the legal standing, ignored the Affadavit in place, ignored the LDC and
decided to recommend to grant the variance anyway?
The only thing I would suggest is that a stipulation be added to do make sure that the intent of where these
are allowed at this height, which is everywhere else, basically, but Vanderbilt Beach, that the decorative cladding
or landscaping and a berm or a combination thereof of some nature is there, is put in front or applied to this wall
to soften it, as the other jurisdictions would have -- where they had done so in other parts of the county.
And with that, that's all I've got to say. And if there's nobody else here, we'll close the public hearing and
we'll entertain a motion.
COMMISSIONER SCHMITT: I make a motion to approve.
Additional Support:
We have worked with and received a resolution from the Vanderbilt Beach Residents Association in
opposition to this variance being granted.
A copy is attached as Exhibit “E”
We have also submitted to the County letters of opposition from other Vanderbilt Residents that are part
of the official record.
Numerous residents presented at the Planning Commission in Opposition to the granting of this variance
and many more are here today including David Galloway, President of the VBRA.
Summary of why this variance should NOT BE GRANTED
1. Mr. Strain admits in his testimony at the PC hearing that there may not be a “hardship” as a
basis for granting this variance. NO hardship exists and the variance should be denied just on
this fact alone.
2. The excessive variance required would have significant impact on the community and canal
view corridor as it exists and as new homes are built and the neighborhood continues to
develop…..and attorneys come forth now using THIS pool as their example
3. The County may also rely on Three (3) documents which protect the County financially –
i. Affadavit signed by contractor
ii. The error language in the LDC
iii. The error language in the Florida Bldg Code 2014
4. The granting of this variance (if Mr Strain is allowed to interpret the LDC as just a “guide”) will
essentially empower the county staff to not just enforce the laws and codes of Collier County,
but to make them up as they go along. I doubt the Commissioners who are elected by the
residents of Collier County wish to allow that to happen or to open the door for every
developer to do the same.
5. There is no legal basis for a variance and the Commissioners would be wrong to grant a
variance without the legal basis for one. Such a decision would likely be overturned in an
appeal and does the Commission really want to send the message to every developer knocking
at the county door that their LDC is just a “suggestion”?
Thank you for granting me the necessary time to make this presentation.
Respectfully Submitted,
George E. Marks
STAFF REPORT – Exhibit A
VA-PL20160001181, 342 Trade Winds Variance
Page 1 of 7
STAFF REPORT
TO: COLLIER COUNTY HEARING EXAMINER
FROM: GROWTH MANAGEMENT DEPARTMENT
ZONING DIVISION- ZONING SERVICES SECTION
HEARING DATE: OCTOBER 27, 2016
SUBJECT: PETITION VA-PL20160001181, 342 TRADE WINDS AVENUE
_____________________________________________________________________________
PROPERTY OWNER/AGENT:
Owner: Roxanne Stone-Jeske Agent: Jason Jenks
Nancy D. Koeper Jenks Builders, Inc.
342 Tradewinds Avenue 7600 Alico Road 12-2
Naples, FL 34103 Fort Myers, FL 33912
REQUESTED ACTION:
To have the Collier County Hearing Examiner (HEX) consider an application for a Variance
from Section 4.02.03.A, Table 4 of the Land Development Code to reduce the minimum rear
yard accessory structure setback line from 20 feet to 6.55 feet for a swimming pool, spa, pool
deck and stairs on a waterfront lot within the Residential Single-Family (RSF-3) zoning district.
See location map on page 2.
GEOGRAPHIC LOCATION:
The subject property is located on Lot 11, Block M of the Conners Vanderbilt Beach Estates
Unit 2 subdivision, on the south side of Trade Winds Avenue, approximately 1000 feet west of
Vanderbilt Drive in Section 29, Township 48 South, Range 25 East, Collier County, Florida.
PURPOSE/DESCRIPTION OF PROJECT:
The purpose of the petition is to request a reduction from the Collier County Land Development
Code (LDC), Section 4.02.03.A.Table 4 stating that the minimum swimming pool and/or screen
enclosure accessory setback for waterfront lots is 20 feet when the swimming pool deck exceeds
4 feet in height above the top of seawall. The seawall on this property is 3.31 feet with a pool
deck that is 9.67 feet. Thus, the pool deck is 6.36 feet above the seawall, which is 2.36 feet
above what is permitted by the LDC.
VA-PL20160001181, 342 Trade Winds Variance
Page 4 of 7
The applicant states that the pool and deck plans submitted to Collier County (“County”)
contained the pool deck elevation of 9.67 feet. The County issued a pool permit,
PRBD2016010076701, with a rear accessory setback of 10 feet versus the required 20 feet. The
applicant built the swimming pool, spa, and pool deck utilizing the 10-foot accessory setback
requirements erroneously provided on the building permit rather than the required 20 feet
accessory setback requirement. The pool deck encroaches 9.83 feet into the 20-foot setback.
According to the permit building plans, the applicant built the stairs 3.5 feet into the erroneously
provided 10-foot setback, Per LDC 4.02.01.D.7 stairways shall not protrude over 3 feet into a
required front, side or rear yard of a single family dwelling; the stairs were approved at the 3.5-
foot encroachment. Please note that the building permits, for both home (PRBD20150617253)
and the pool, were permitted with inclusion of the stairs—as depicted on the survey on the
proceeding page.
The permitted pool and deck are located in the Residential Single-family District (RSF-3); the
rear yard swimming pool and/or screen enclosure (one- and two-family) accessory setback for
waterfront lots is 10 feet unless the swimming pool deck exceeds 4 feet in height above the top
of the seawall; creating a required setback of 20 feet.
SURROUNDING LAND USE & ZONING:
SUBJECT PARCEL: Vacant Lot with building permit for new home, zoned RSF-3
North: Single-family residential development, zoned RSF-3
East: Single-family residential development, zoned RSF-3
South: Canal and then single-family residential development, zoned RSF-3
West: Single-family residential development, zoned RSF-3
.
Aerial photo taken from Collier County Property Appraiser website
VA-PL20160001181, 342 Trade Winds Variance
Page 5 of 7
GROWTH MANAGEMENT PLAN (GMP) CONSISTENCY:
The subject property is located in the Urban Residential Subdistrict of the Urban Mixed Use
District land use classification on the County’s Future Land Use Map (FLUM). The purpose of
this subdistrict is to provide for higher densities in an area with fewer natural resource
constraints and where existing and planned facilities are concentrated. The Growth Management
Plan (GMP) does not address individual variance requests; the Plan deals with the larger issue of
the actual use.
ANALYSIS:
The decision to grant a variance is based on the criteria in LDC Section 9.04.03. Staff has
analyzed this petition relative to these provisions and offers the following responses:
a. Are there special conditions and circumstances existing, which are peculiar to the
location, size and characteristics of the land, structure or building involved?
Yes. Per the applicant, the pool shell, retaining wall and stairs are constructed. The
applicant commenced construction under building permit, PRBD2015092870601, with an
incorrectly cited rear accessory pool setback of 10 feet versus the required 20 feet. The
applicant abided by the incorrectly cited rear accessory 10-foot pool setback for the
swimming pool, spa, and pool deck. The stairs off the pool deck do encroach 3.5 feet into
the erroneously provided 10-foot setback; however they were permitted with the
swimming pool, spa, and pool deck.
b. Are there special conditions and circumstances, which do not result from the action
of the applicant such as pre-existing conditions relative to the property, which are the
subject of the Variance request?
Yes. The applicant applied and received a pool permit from the County citing an incorrect
rear accessory pool setback. The applicant proceeded, and followed, with provided
setbacks unaware of any violations. Due to this error, the subject structure is currently
encroaching 6.55; more specifically, the pool, spa, pool deck encroach 9.83 feet, resulting
in a 10.17 rear yard setback, and the stairs encroach 13.45 feet, resulting in a 6.55-foot
encroachment.
c. Will a literal interpretation of the provisions of this zoning code work unnecessary
and undue hardship on the applicant or create practical difficulties for the applicant?
Yes. Per the applicant, the pool is already constructed and to abide by the required
accessory 20-foot setback would require the applicant to remove the existing pool and
replace it at an estimated expense of $50,000. The applicant relied on the erroneously
issued pool permit with a 10-foot rear accessory setback in constructing the existing pool
structure.
d. Will the Variance, if granted, be the minimum Variance that will make possible the
reasonable use of the land, building or structure and which promote standards of
health, safety and welfare?
VA-PL20160001181, 342 Trade Winds Variance
Page 6 of 7
Yes. The applicant is only seeking the minimum variance which will allow the pool deck,
pool, spa, and stairs to remain.
e. Will granting the Variance confer on the applicant any special privilege that is denied
by these zoning regulations to other lands, buildings, or structures in the same zoning
district?
Yes. The applicant will be able to retain a decreased accessory rear yard setback for a pool
deck that exceed 4 feet in height above the seawall. However, it should be noted that the
applicant relied on the County issued permit which cited incorrectly the accessory rear
swimming pool and/or screen enclosure setback.
f. Will granting the Variance be in harmony with the general intent and purpose of this
Land Development Code, and not be injurious to the neighborhood, or otherwise
detrimental to the public welfare?
Yes. Staff is of the opinion that the proposed Variance would legitimize the existence of
the pool and pool deck that are currently under construction.
g. Are there natural conditions or physically induced conditions that ameliorate the
goals and objectives of the regulation such as natural preserves, lakes, golf courses,
etc.?
Yes. The applicant states that variations in seawall height in this location do not create a
uniform height for all houses and therefore create different pool deck height requirements
over 4 feet of the seawall.
h. Will granting the Variance be consistent with the Growth Management Plan?
Approval of this Variance will not affect or change the requirements of the Growth
Management Plan.
COUNTY ATTORNEY OFFICE REVIEW:
The County Attorney Office has reviewed the staff report on October 3, 2016.
RECOMMENDATION:
Staff recommends that the Collier County Hearing Examiner (HEX) approve Petition VA-PL-
20160001181, 342 Trade Winds Avenue Variance.
ATTACHMENTS:
1. Attachment A: Application
VA-PL20160001181, 342 Trade Winds Variance
Page 7 of 7
PREPARED BY:
_______________________________________ ______________________
RACHEL BEASLEY, PLANNER DATE
ZONING DIVISION-ZONING SERVICES SECTION
REVIEWED BY:
________________________________________ ______________________
RAYMOND V. BELLOWS, ZONING MANAGER DATE
ZONING DIVISION-ZONING SERVICES SECTION
________________________________________ ______________________
MICHAEL BOSI, AICP, DIRECTOR DATE
ZONING DIVISON
EXHIBIT “B”
TRANSCRIPT OF PLANNING COMMISSION HEARING – January 19, 2017
( only the portion related to this matter has been included – pages 1-30)
January 19, 2017
Page 1 of 46
TRANSCRIPT OF THE MEETING OF THE
COLLIER COUNTY PLANNING COMMISSION
Naples, Florida, January 19, 2017
LET IT BE REMEMBERED, that the Collier County Planning Commission, in and for the County of
Collier, having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION in
Building "F" of the Government Complex, East Naples, Florida, with the following members present:
CHAIRMAN: Mark Strain
Stan Chrzanowski
Diane Ebert
Karen Homiak
Joe Schmitt
Patrick Dearborn
ALSO PRESENT:
Mike Bosi, Planning and Zoning Manager
Fred Reischl, Principal Planner
Jeffrey A. Klatzkow, County Attorney
Heidi Ashton-Cicko, Managing Assistant County Attorney
Tom Eastman, School District Representative
January 19, 2017
Page 2 of 46
P R O C E E D I N G S
MR. BOSI: Chair?
CHAIRMAN STRAIN: Good morning, everyone. Welcome to the Thursday, January 19th meeting
of the Collier County Planning Commission.
If everybody will please rise for Pledge of Allegiance.
(The Pledge of Allegiance was recited in unison.)
CHAIRMAN STRAIN: Okay. Roll call by our secretary, please.
COMMISSIONER EBERT: Yes. Good morning.
Mr. Eastman?
MR. EASTMAN: Here.
COMMISSIONER EBERT: Mr. Chrzanowski?
COMMISSIONER CHRZANOWSKI: Here.
COMMISSIONER EBERT: Ms. Ebert is here.
Mr. Strain?
CHAIRMAN STRAIN: Here.
COMMISSIONER EBERT: Ms. Homiak?
COMMISSIONER HOMIAK: Here.
COMMISSIONER EBERT: Mr. Schmitt?
COMMISSIONER SCHMITT: Present.
COMMISSIONER EBERT: And, Mr. Dearborn?
COMMISSIONER DEARBORN: Here.
COMMISSIONER EBERT: Thank you.
CHAIRMAN STRAIN: Thank you. And we have two advertised public hearings today. The first
one is going to be a variance on a property at 342 Tradewinds Avenue, and the second one is a review of our
Collier County Land Development Code amendments. It will be the second or third reading on some of these
for the Planning Commission. It will not be the final. There will be another review. We'll have maybe our
final on the 30th in the evening.
And with that, we'll move into the Planning Commission absences. We have two upcoming
meetings: 5:05 January 30th is the LDC review that I just mentioned. Does anybody know if they're not
going to make it on January 30th in the evening in this room?
(No response.)
CHAIRMAN STRAIN: Okay. And the next regular meeting is February 2nd. Same time, same
place, the same place as today. Everybody? Okay.
COMMISSIONER SCHMITT: That one, Mark, I may miss that one, but I'm not sure. What's the
agenda look like for that one?
MR. BOSI: I believe there's only one item on for the 2nd.
CHAIRMAN STRAIN: Okay.
COMMISSIONER SCHMITT: I'll let you guys know, and then you can let the rest of the
commissioners know if, in fact, I'm going to be missing from that one. It could go up go in the air.
CHAIRMAN STRAIN: Thank you.
COMMISSIONER SCHMITT: But I'll know by that night. I'll be here for that Monday meeting.
CHAIRMAN STRAIN: Okay. Well, we'll still have a quorum, so we're good. Thank you.
That takes us to approval of minutes. There have been none electronically provided, so we'll skip
that.
We'll go to the BCC report and recaps. And Ray's not here, but, Mike, you can go ahead.
MR. BOSI: Thank you, Chair. Mike Bosi, Planning and Zoning Director.
At the hearing on the 10th, the Collier County Resource Recovery Business Park IPUD was
approved unanimously. The Naples Heritage PUD amendment to add the 5-acre tennis facility was defeated
by a 3-2 vote, and further clarification was provided to staff for the specifics of a moratorium that was
going -- that is being considered for the East Trail related to self-storage facilities, car washes, pawnshops,
and --
January 19, 2017
Page 3 of 46
CHAIRMAN STRAIN: Gas station.
MR. BOSI: -- gas stations. Thank you. And so with the further direction, we are bringing back an
ordinance on the 14th of February for the Board to consider whether they want to take final action upon that
moratorium.
CHAIRMAN STRAIN: Thank you, Mike.
That brings us to the chairman's report, and I have just one thing. Good morning, Nora Frances. I
hope you're watching today. She's a friend of the Planning Commission's. Happens to be related to Stan.
COMMISSIONER CHRZANOWSKI: Only by marriage.
CHAIRMAN STRAIN: The consent agenda, we have none, so we'll move directly into our
advertised public hearings.
***The first one up is Item 9A. It's VA-PL20160001181, and it's a variance request for a property
located at 342 Tradewinds Avenue.
All those wishing to testify on behalf of this item, please rise to be sworn in by the court reporter.
(The speakers were duly sworn and indicated in the affirmative.)
CHAIRMAN STRAIN: Thank you. We'll start with disclosures on the Planning Commission from
Tom.
MR. EASTMAN: None.
CHAIRMAN STRAIN: Stan?
COMMISSIONER CHRZANOWSKI: Strangely, none.
CHAIRMAN STRAIN: Diane?
COMMISSIONER EBERT: I talked with Fred yesterday, and emails and correspondence with a
neighbor.
CHAIRMAN STRAIN: You've had correspondence with a neighbor, or they just sent you an email?
COMMISSIONER EBERT: Well, yeah, they just sent me.
CHAIRMAN STRAIN: Okay. That's all. I just wanted to make sure.
We've all got an email or two on this, and so I think mine are probably similar to everybody else's. I
did talk with the applicant when this first came to my other office, and she came in and asked for some
clarification of the process. We went over that, and I think we've talked once since then. And I also talked to
Mr. Patrick -- Pat Neale who represents some residents who are not in favor of this application. And then, of
course, staff.
Diane?
COMMISSIONER HOMIAK: Karen.
CHAIRMAN STRAIN: Karen, I'm sorry. Diane's over here.
COMMISSIONER HOMIAK: Nothing. Just the additional email yesterday.
CHAIRMAN STRAIN: Joe?
COMMISSIONER SCHMITT: None.
CHAIRMAN STRAIN: Pat?
COMMISSIONER DEARBORN: None.
CHAIRMAN STRAIN: Okay. With that, we'll move right into the presentation by the applicant to
start out.
MR. SHAPIRO: I'm Marc Shapiro representing the applicant.
CHAIRMAN STRAIN: If you have items that you want to use the overhead for -- I don't think
you've appeared before us before -- that stand over there has a lot more electronic availability for things to
show. You might want to use that.
MR. SHAPIRO: Yeah, there may be some --
CHAIRMAN STRAIN: And also, our mikes don't pick up unless you're really close to them. And
we have a walk-around mike over there if you need to get closer to something else that you're trying to show.
MR. SHAPIRO: Okay. Thank you.
CHAIRMAN STRAIN: We'll need you to identify yourself and spell your last name for the record,
and we'll be good.
MR. SHAPIRO: My name is Marc Shapiro. Marc's spelled M-a-r-c; Shapiro, S-h-a-p-i-r-o.
January 19, 2017
Page 4 of 46
CHAIRMAN STRAIN: Thank you.
MR. SHAPIRO: And I'm representing the petitioners in this case for 342 Tradewinds Avenue.
CHAIRMAN STRAIN: Everything, by the way, that you show on overhead will have to
be -- copies of it will have to be left with the court reporter for the record.
MR. SHAPIRO: Okay. They're mainly going to be photographs.
CHAIRMAN STRAIN: That's great. Thank you.
MR. SHAPIRO: Okay. So there was a variance petition that was filed by the builder in this case,
Jason Jenks, and then there was a deficiency letter that was issued, and then my office prepared an amended
variance, and that variance was actually recommended for approval. And so that was recommended for
approval by, I guess, the Growth Management Department.
But I want to read a couple things actually from their words. And, you know, it's important to point
out, there's three basic things is -- one is the variance we're asking for is a very small variance. So it's -- and
there's a new code that was brought in this area. So this particular property, you couldn't even tell that it
doesn't comply with the current variance because there are several houses that are exactly in line. In fact, it
doesn't look out of place at all, and you wouldn't know.
And, in fact, that comes to my first point is that when the permit was applied for, it was applied for
using the setbacks that are currently for the pool right now. Those setbacks were approved. There was many
inspections that were done to the property. In each case, during each inspection, it was approved. Nobody
even caught that it didn't meet the current code until one of the neighbors, I guess, came and pointed out to
the county that it didn't comply with the current code, and it was at that time that my client was informed they
had to do a petition for a variance.
So my client, who hired the builder, had no idea that it didn't comply with code. In fact, if you'd look
at it, there's no way you could even tell that it -- because it doesn't stick out. It's something that's completely
in line with the rest of the structures that are on both sides of the street or on the canal there.
So -- and it says here -- this is from the report that was issued from the Growth Management -- the
applicant utilized the erroneously approved setbacks unaware of any violations. So when they applied for the
pool permit, the county actually provided the setbacks, and they erroneously provided the setbacks that were
the older setbacks that hadn't -- rather than the updated ones. So based on those setbacks, my client
constructed the pool and poured the slab.
And we're talking about approximately two and a half feet. Now, the setbacks, they're about six feet
over -- instead of a 20-foot setback, they were told they had a 10-foot setback, so they're over the setback, but
it's important to note that the height of the pool wall, if it was two-and-a-half feet lower, they could be 10 feet,
the setbacks. It's 20-feet setbacks based on the current height. So we're talking two-and-a-half feet.
So the two-and-a-half feet does not really affect anyone's view. In fact, we have the neighbor right
across the street -- in fact, I brought some pictures, which I'll show in a moment, but if anything, the view
from the neighbor, their lanai actually sticks out further than my client's pool which doesn't have a lanai on it
and never will.
Also, if you're looking across, there's boats parked, and the boats that are parked, which are legally
parked in front of the seawall, stick out higher than my client's pool does. So it's a very, I would say,
negligible impact. In fact, when I looked down the canal, I had to ask, you know, which one -- to my client,
which one is your house, because you can't tell by looking at it that it sticks out. It's perfectly in line with all
of the rest of the houses. We're just talking about two-and-a-half feet up. And a few years ago, when the
code was that, you know, that -- exactly what they built, so we're not talking about any major impact.
Now, it would be a severe economic hardship for my client to have to completely tear down the
whole -- by the time this was brought to their attention -- and, again, it was brought to their attention because,
I guess, the neighbor pointed it out to the county -- they had already poured the slab. They had already put
the whole pool in -- where the pool was going to be. That was already in. And they estimate -- this is from
the builder -- and I think it's a very conservative estimate -- that to go back and redo this -- because they'd
have to basically tear out the whole poured concrete pool and start over again -- would be, in his words,
$50,000. And, again, I think that's a very conservative number. But it would be, at minimum, $50,000 to go
back and redo this over essentially two-and-a-half feet.
January 19, 2017
Page 5 of 46
So I'd like to at this time show some photographs.
CHAIRMAN STRAIN: Okay. Fred will help you with the overhead; that's the gentlemen right
there.
You'll have to use the mike, either the walk-around mike or the stationary one.
MR. SHAPIRO: All right. So if you can see where my finger is, this is the structure in question.
And, actually, this view is where -- the people that are here opposing this, this would be their view. So there's
two views. There's an open-water view, and then there's down the canal.
So if you're looking down the canal, you'll see that this structure is really in line with all the other
structures and, in fact, one of the people that's objecting to this, his pool enclosure is the same height and the
same setback as my client's because, as I said, this is a new, I guess, updated requirement. And when
they -- when they put in the permit for the pool, they were erroneously giving the older setback requirements.
So it's not like this sticks out at all. It just doesn't comply with the latest setback requirements.
Here's another -- this is a similar view, just a little bit more close up. And this is a view here -- you'll
see that this structure here is the structure in question. And the neighbors on actually both sides, if you line
up the seawalls, they line up perfectly together. In other words, the setbacks on both sided, the neighbors on
either side, are both exactly the same setbacks as my client's, the petitioner's setback. And, again, it's because
these were the former setbacks.
So this is the picture of the -- you can see the open-water view. And, again, the petitioner's structure
is right here.
So you'll see if you're looking down, the people that are objecting to this, the neighbors that are
objecting, they are way down towards this range -- I'm sorry. They're towards this area here. So they're
actually -- their view is not obstructed of the open water because the petitioner's structure's down here. And if
they look down the canal, I don't see, being on this side of the road, how their view could be remotely
affected, and if it was affected, it would be affected by the lanai of the house in front of them, and if it is
affected at all, the two-and-a-half feet isn't going to make any difference.
In fact, as I said, the boat -- the boats that are parked in front of the structure actually stick out above
the pool enclosure. So if their views are obstructed at all, it's not because of this. In fact -- and I think you
have this as part of the application, but there's a couple letters. One letter is from an objector who actually
canvassed the neighborhood on both sides of the street and tried to get as many people to object as possible,
and I think he was successful in maybe getting one other, possibly two others, to object.
My client, I believe, has 43 people. Well, I say 43 because that's how many people live there that
either didn't care about it or actually signed a petition in her favor or a letter in her favor saying that they
didn't believe that her house -- they believe that the variance should be granted; that her house doesn't
obstruct any view, doesn't stick out, doesn't make it look like it's not conforming with the community.
In this picture here you'll see this house right here is the subject house, but the house right before
that, the lanai actually would inhibit the view and actually that tree right there would inhibit the view of the
objectors that are looking down the canal before my client's pool enclosure would. In fact, from this view,
which is -- you can't even see the pool.
And then, lastly, this picture shows -- and I want to point out the house next to it with the lanai. So
the objectors would be looking down this way, so they'd actually be seeing that lanai before they would see
this pool.
So I guess the three points I want to make is that it was not purposefully done. When the builder
applied for the permit, they were erroneously given the wrong setbacks; they built the pool using the wrong
setbacks; there was four inspections along the way, never once did anyone point out that, oh, this doesn't
comply. In fact, it wasn't till the neighbor pointed that out, and that's the reason we're here today.
The second point I want to make is that if there's any impact at all on the neighborhood, which I
submit there's not because it's perfectly in line with the other houses' setbacks -- in fact, if you were to walk
that street, you wouldn't even notice that this house was out of conformity.
But if there is any impact, it would be very negligible. We're basically talking about two-and-a-half
feet. If the seawall were two-and-a-half feet lower, the setback would be correct. Also, if they moved it back
approximately, I believe, six feet, then they could have it that height. So we're talking about two-and-a-half
January 19, 2017
Page 6 of 46
feet, and the economic hardship involved in putting it into compliance would be, at minimum, $50,000.
So for those reasons and also the fact that I think if you read the planning board's recommendation,
they set things forth very thoroughly on why they would -- not the planning board but the -- I guess the report
from --
CHAIRMAN STRAIN: It's called a staff report.
MR. SHAPIRO: -- yeah, staff report. They set forth very particularly why they're recommending
that the variance be approved.
So I would ask that, you know, you all take a look at that, and they lay it out very nicely. And they
were also aware of the neighbors that were objecting also when they came to that recommendation.
CHAIRMAN STRAIN: Are you finished, Mr. Shapiro?
MR. SHAPIRO: Yeah, I am finished. My understanding is there's some neighbors that are right
across the way that were also going to testify for the petitioner.
CHAIRMAN STRAIN: Let me tell you what the procedure is, because I don't think you've been
here before. After you finish your presentation, the Planning Commission will ask questions if they have
any. Then from there we'll go to the staff report. After the staff report and staff make verbal
recommendations over parts of their report, we ask questions of them. When they finish, we go to public
speakers.
MR. SHAPIRO: Okay.
CHAIRMAN STRAIN: After public speakers, you'll have an opportunity for a 10-minute rebuttal,
and then we go into discussion and decision on our part, or recommendation on our part. So that will be the
process we'll go through. And since you're finished, and before we go to Planning Commission questions,
there are a few things I think I'd like you to answer and clear up so the Planning Commission gets the benefit
of those answers before any questions are asked.
MR. SHAPIRO: Yes.
CHAIRMAN STRAIN: You said the code was exactly what it was when they built this 2.5,
two-and-a-half years ago. What did you mean by that?
MR. SHAPIRO: Well -- and, again, I don't know when the time limit was, but --
CHAIRMAN STRAIN: Time limit -- what do you mean by "time limit"?
MR. SHAPIRO: When I say two-and-a-half years, I don't know if that's the exact time.
CHAIRMAN STRAIN: Probably in terms of closer to a decade or two. This height issue has been
in the code very, very early on. The problem is it's very obscure in our code to find it, and it only seems to be
applicable to Vanderbilt Beach. Specifically our code says Isle of Capri and Marco Island don't have to have
this kind of an application. They go to seven feet, which yours then would have been fine if you were on
Isles of Capri or Marco Island. Also --
MR. SHAPIRO: So I misspoke about the two-and-a-half feet. I just was kind of making that up as
an example.
CHAIRMAN STRAIN: Well, you can't make things up. We've got to deal with the code in fact.
And if you're going to reference something of the code and it also involves the staff error, we've definitely got
to weigh in on that and understand it.
You had said that the setbacks were erroneously given to your client. Have you got something that
says for your client to design to those setbacks?
MR. SHAPIRO: I believe there is. The builder is here, and he could probably better answer that
than I could.
CHAIRMAN STRAIN: Well, that will be helpful. If he's here, then we'll -- see, you ought to call
him as someone -- a witness on your behalf to begin with before we go to the staff report. So if he's here,
we're definitely going to -- we'll ask questions of him after the Planning Commission gets finished with you.
MR. SHAPIRO: Okay.
CHAIRMAN STRAIN: Those couple things, though, are important as to how this happened, the
time frame. The code has not changed. The code is just obscure and hard to read in this particular issue, I'll
grant you that. It certainly isn't clear.
And as far as the staff goes, yes, a staff member certainly made an error in approving this the way it
January 19, 2017
Page 7 of 46
came through. But I don't know if that was a result of the staff telling you to do it that way or your design
professionals decided to do it that way, and that will be something we'll find out shortly.
With those clarifications, and before I get into any more of my questions, I'll turn to the Planning
Commission for any questions they may have to start with.
Anybody? Stan?
COMMISSIONER CHRZANOWSKI: Just, those shots you took, those were taken with a drone, I
assume?
MR. SHAPIRO: Yes.
COMMISSIONER CHRZANOWSKI: I'm glad you did that. It showed it very well. I looked at
Google Earth 3D. And from what I could tell on Google Earth 3D, I couldn't see where there was a
tremendous difference from this to the other, the older to the new, but those shots showed it pretty good.
I was going to ask -- you probably don't know. I guess a lot of my other questions are going to be to
staff.
MR. SHAPIRO: Okay.
CHAIRMAN STRAIN: Okay. Anybody else? Joe?
COMMISSIONER SCHMITT: I have several questions regarding the process, but I'm going to
defer and wait to talk to Mr. Reischl, because I need to -- but the question I do have for you, Marc, did
you -- or do you have in your documents -- typically when you go in for a building permit, the first thing they
do is lay out the site plan, and then on that site plan, the reviewer in the Building Department, is my
recollection, would initial off each of the setback requirements and put their initials on -- actually right on the
document.
Do you -- is that the procedure now? And I'm going back six, seven years back in -- but typically
they would -- you'd go in, on the building -- the building envelope that is allowable for a building would be
shown on the site drawing of the -- and then all of the setbacks would be checked off to ensure that the
setbacks are in compliance.
CHAIRMAN STRAIN: The permits for this project are on my desk. I pulled them yesterday
afternoon. That document is there.
COMMISSIONER SCHMITT: Is there.
CHAIRMAN STRAIN: There's been four permits: One demo, one pool, the main permit for the
house, and the dock permit that was reissued, because it was started, then stopped, and then reissued again.
And there's some discrepancies between the permits, but the setbacks and everything were acknowledged by
staff as being okay and issued that way. And I've actually got the building permit with me. I didn't know
how much the applicant would have brought in case there were questions, but the permit itself was issued at
10 feet.
COMMISSIONER SCHMITT: You don't have that document that shows the setbacks being
approved?
CHAIRMAN STRAIN: It's in the file that's on my desk. I did not bring it with me to the meeting. I
assumed the applicant would have brought all of that, but --
COMMISSIONER SCHMITT: I'm surprised that that's not part of the application or the applicant
would have had that to present to us today.
My second question -- and I'm going to defer to Fred because I want to clearly understand
the -- again, I've got the MUNI code here. I'm trying to read the MUNI code, because I looked at this before.
But in this part I recall nine, 10 years ago, that's what drove the change in the code, if you went up a certain
height, and I seem to think it was four feet; is that correct?
MR. SHAPIRO: That's correct.
COMMISSIONER SCHMITT: You go four feet, you have to have a 20-foot setback. If your pool
height is less than 4 feet, you only need a 10-foot setback; is that essentially the --
MR. SHAPIRO: That's exactly correct.
CHAIRMAN STRAIN: Well, we can -- I'll give Fred the code.
COMMISSIONER SCHMITT: Yeah, let's review that, because I want to make sure that -- and I had
thought at one time that actually in the LDC there was a diagram that showed that. I guess that's no longer in
January 19, 2017
Page 8 of 46
the LDC.
CHAIRMAN STRAIN: No, but a former administrator by the name of Joe Schmitt actually did a
diagram a few years back, and it's in the staff clarification section of our notes.
COMMISSIONER SCHMITT: I did, yes.
CHAIRMAN STRAIN: Fred, if you go here -- go to the reference in the table first, and that's -- once
we get this seen, maybe it will help some of the questions that you-all have.
MR. SHAPIRO: But, Mr. Schmitt, my understanding is exactly as you described. And I think
their -- rather than four feet, they're 6.57.
CHAIRMAN STRAIN: Fred, that -- I'm not sure that's the right one. Those were non-waterfront.
Go to the next table.
MR. REISCHL: Oh.
COMMISSIONER SCHMITT: You're going to have to pan out a little bit on that, Fred.
CHAIRMAN STRAIN: Well, I'll show you -- the footnotes are on a separate page. Go to the next
table. It's the second or third sheet. And if you look down where it says No. 4 -- you have to pan out a little
bit -- this is for waterfront lots along the Gulf of -- and No. 4 says, swimming pools and screen enclosure
single-family, one-family, and now two-family; rear, 10 feet, and then the little Footnote 3. Now, Footnote 3
is the catchall on this. If you could show Footnote 3, Fred; down the third page, I think.
MR. REISCHL: Very small.
CHAIRMAN STRAIN: Yeah, it says 20 feet where swimming pool decks exceed four feet in height
above the top of seawall or top of bank except Marco Island and Isle of Capri, which may construct to a
maximum of seven feet above the seawall with a maximum of four feet of stem wall exposure with a rear
setback of 10 feet.
So -- and Marco, by the way, is no longer part of Collier County. So I pulled Marco's LDC, and they
have mimicked this language in their current standards.
So the seven foot applies to Marco and Isles of Capri, but only four foot of concrete exposure, which
means it's got to be clad or a buffer with vegetation or sodded.
MR. REISCHL: Sodded.
CHAIRMAN STRAIN: Any way you'd like. But if they're at less than 20 feet, they can't go higher.
It's got to be four feet so that a variance is not for the setback as much as it is for the height to be at that
setback. I hope that helped clarify because this was not an easy one to follow for that language.
COMMISSIONER SCHMITT: What -- and so the current height as shown, is that correct what we
have --
MR. SHAPIRO: I think the county measured at 6.57.
CHAIRMAN STRAIN: Yes.
COMMISSIONER SCHMITT: Okay. That's the current height, then. Okay. I thought it was
four-point something. Okay. 6.57. All right.
CHAIRMAN STRAIN: All right. Anybody else have any questions of the applicant?
COMMISSIONER SCHMITT: Marc, you stated that there were four inspections. Those
inspections were not specifically looking for setbacks. There are several inspections throughout the building
process.
MR. SHAPIRO: Correct. And we're not specifically looking for setbacks, that is correct.
COMMISSIONER SCHMITT: And I want to make sure that's clear on the record, because if an
inspector goes out and does an electrical, he or she's doing electrical inspections, not a setback --
MR. SHAPIRO: Correct.
COMMISSIONER SCHMITT: -- verification.
MR. SHAPIRO: And I'm talking about -- and the builder could better explain this, because I'm
getting my information from the builder and relaying it to you. But I think there are four inspections on the
pool.
So at no time was it ever said during any of those inspections that, hey, your setbacks aren't correct.
I guess the point is is that now that it's already there, it would be a very -- economic hardship to take
it all down. It would come at a considerable cost is, I guess, what I'm trying to say.
January 19, 2017
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And, you know, maybe -- and this is up to you. But you were saying that the Marco Island code said
you could have a certain height as long as there was a buffer there, and maybe that's a compromise, to put a
little hedge in front of the stem wall.
CHAIRMAN STRAIN: Generally what happens is when we run into these situations, the applicant
will come prepared with the documentation to basically make their case in regards to how this occurred. And
I know you don't -- you haven't got any permit applications or anything with you, do you?
MR. SHAPIRO: I don't have the permit applications with me, no.
CHAIRMAN STRAIN: Okay. I have reviewed them, and I didn't bring them because they're our
county's copies, but I didn't know you wouldn't be bringing them as well; otherwise, I would have brought
them to help clarify some of the things you've asked, Joe.
Some of the things you've said I wanted to get some clarification on. You said there were 43 people
who didn't call or sign -- or necessarily sign in favor. Did someone -- and that was an assumption they
weren't objecting to it then?
MR. SHAPIRO: Yes.
CHAIRMAN STRAIN: Did you physically or did your client, or do you have something
documented that says you actually went to these 43 homes and spoke to those people? Do you have a survey
or something where you --
MR. SHAPIRO: No. What I do have -- and I thought you already had that, but I have a -- I actually
have a copy of a letter that was signed by -- and then there's signatures, and then next to it is the residence that
they live at.
MR. REISCHL: That's included in your packet.
CHAIRMAN STRAIN: Right. How many people are on that signature page?
MR. SHAPIRO: Eight.
CHAIRMAN STRAIN: Right. His number was 43, and I'm trying to understand --
MR. SHAPIRO: The 43 --
CHAIRMAN STRAIN: -- how valid that is.
MR. SHAPIRO: -- because I think that's the number of residents on both sides of the street. And
what I was told by my client is that the objector that's here today pretty much knocked on everybody's door.
CHAIRMAN STRAIN: Okay. You have a couple times mentioned the view down the canal, and at
the end of the canal wasn't obstructed any more by what your client has built versus what may already exist
there. The view corridors that we consider for these kind of things usually are in line with riparian lines. And
that may be an avenue that you may want to look at in reference to view in the future. But down the canal
and out the end isn't really something that's considered as directly behind their home. They have riparian
rights on both sides of their house, property lines, and that's generally what we take a look at in these kind of
matters.
MR. SHAPIRO: If I could show you an answer (sic) that might help answer that question. So these
little yellow tabs, and I'm not how sure --
CHAIRMAN STRAIN: Oh, we can see them.
MR. SHAPIRO: You can see them. But those are the people that I believe that are objecting to the
variance. And that was taken by Google Earth, so at the time the structure was not up so, unfortunately, I
don't have a picture with the structure up, but this vacant lot right here is where the structure was built.
So heading this way, that is the open water view heading --
COMMISSIONER CHRZANOWSKI: You have a vacant lot? It's not the one with the trees. It's
the one two off -- yeah, right under the W of Tradewinds.
MR. SHAPIRO: Oh, yes, you're correct. That's -- yeah. So that's the house in question, and then this
is the location of the people that are objecting.
So I guess what I'm saying is, it's hard to see how their view would be affected. And if it is affected,
it would be very minorly. I mean, we're talking about 2.57 feet. And, actually, when you -- if you look
straight across the canal, the boat sticks up higher than the elevation of the pool. So you actually can't even
see the pool wall because of the boat that's in front of it.
CHAIRMAN STRAIN: Okay. A couple other issues. You mentioned, or I thought you stated, that
January 19, 2017
Page 10 of 46
if this pool was moved back six feet, you could have had it at the height they're at. That's not true. To stay at
that height you'd have to be 20 feet back, and you're only 10.15 feet back. Then if you take into consideration
your stairwell, you're only 6.5 feet back. So you'd have to be considerably further back.
The issue of being forward or backward is not as much of an issue as the height of the deck of the
pool. That's the six feet that we're trying to -- six-and-a-half feet or so we're trying to deal with.
The property is perfectly in line with others. When you made that statement, do you know if the
others are above four feet since they're in line with an alignment that could only be allowed if they were at or
below four feet?
MR. SHAPIRO: Some are and some aren't. Some are below four feet. There are some that are
above that -- again, probably more than 10 years old when the -- before the code changed.
CHAIRMAN STRAIN: Well, the code is actually older than that. But if there are some above that
height and they're in that alignment, it would have certainly been helpful to possibly have looked up those
building permits and see what height they're at and maybe would help your argument. But I didn't know if
you had that information.
I'm double-checking to make sure I don't have any other questions. Oh, I noticed in your photos you
didn't show the existing construction with the stairwell. The stairwell is part of the setback alignment. Did
you have one with the stairwell?
MR. SHAPIRO: Yes. I'll show you a couple.
CHAIRMAN STRAIN: There you go.
MR. SHAPIRO: That would be the stairwell right there.
CHAIRMAN STRAIN: So the variance request for the setback is because the stairwell exceeds the
allowed protrusion if it was at four feet for the pool deck, for example, to go into a setback. Stairwells do
have some allowance to -- when you go into a setback, but I believe it's only three feet, and this one's
three-and-a-half feet?
MR. REISCHL: Three feet is the allowable protrusion, and this one is three-and-a-half.
CHAIRMAN STRAIN: Okay. So if this one had six inches less of the protrusion of the stairwell
and the setback was allowed at 10 feet, the stair wouldn't be an issue. So I wanted to point that out because it
is part of the discussion today, and I noticed the closeup photograph you had didn't show the angle from the
stairwell.
And, by the way, I don't know if staff caught this, that stair is facing a different direction than the
stair that was approved on the building permit. And if the builder's here, maybe he can answer that question,
too.
COMMISSIONER SCHMITT: Can you back that out a little bit so I can get a full picture of the --
MR. SHAPIRO: Yes. I actually have another one that has a more full view. If you'd like to look at
that, that may be better.
COMMISSIONER SCHMITT: And just for clarification, it was my understanding that the need to
build the pool height at the elevation that was built at. Two -- one is to meet the base flood elevation for the
home, and most residents want to walk out from their residence onto the pool deck rather than walk down the
stairs to the pool.
Could the pool have been built -- could it have been designed and built at a lower height than what it
was built at? Which means you would have left the house and walked downstairs to another elevation, a
lower elevation for the pool.
MR. SHAPIRO: So the answer to your question is, I believe so. Now, the builder could better
answer that. So it's not whether it could have, because I believe that it could have. I mean, it could have been
built at a 4-foot instead of a 6 -- instead of a 6.57-foot. But the issue is now it's been done, and to kind of
un-ring that bell comes at a significant cost.
So I don't think it's a matter of could it have been in compliance. I think that if we were to honestly
answer that, yes, it could have been built in compliance, but since it hasn't, it's just what is the cost of bringing
it into compliance. And I think that's a pretty heavy cost compared to the impact.
COMMISSIONER SCHMITT: Understand.
Fred, can you put that other picture up that shows the overhead? I wanted to -- again, that's -- can
January 19, 2017
Page 11 of 46
you center the house actually into the picture.
COMMISSIONER CHRZANOWSKI: Zoom out a little.
MR. REISCHL: Zoom out.
COMMISSIONER SCHMITT: Yeah. There. I want to get a picture of the whole thing. Okay.
Yeah. That's exactly what I thought. You're coming out from the house onto basically a lanai deck,
and then the pool is at the same height.
MR. REISCHL: It's just a few inches. The house is -- the base flood elevation was 10, and it's
nine-point something. It's a little -- a few inches less. So you'd step one step down onto the pool deck.
COMMISSIONER SCHMITT: Okay.
CHAIRMAN STRAIN: Anything else?
COMMISSIONER SCHMITT: No.
CHAIRMAN STRAIN: Could you ask your builder, if he's here, if the builder could come up. We
do have questions since we understand he's here.
COMMISSIONER SCHMITT: Is that the builder or the person who designed the house as well?
MR. SHAPIRO: Both. I think both.
MR. JENKS: I didn't design the house.
CHAIRMAN STRAIN: You'll need to say that on the record after you identify yourself.
MR. JENKS: Jason Jenks. I was the contractor who built the house.
CHAIRMAN STRAIN: And you did not design the house, was your response to that?
MR. JENKS: I did not.
CHAIRMAN STRAIN: Was that the question?
COMMISSIONER SCHMITT: Yeah, that was the question. I wanted to --
COMMISSIONER DEARBORN: Did you sub out the work for the pool, or were you actually
building the pool as well?
MR. JENKS: We subbed out the work for the pool.
COMMISSIONER DEARBORN: The company who's doing the pool?
MR. JENKS: Mack Pools.
COMMISSIONER DEARBORN: Mack Pools, okay.
CHAIRMAN STRAIN: The information about how this 10-foot, at the height that this deck came
about, your -- the attorney had indicated that the staff provided you and told you to build it, to design it to that
distance; is that true?
MR. JENKS: The staff.
CHAIRMAN STRAIN: County staff?
MR. JENKS: Well, the pool was built by the time we submitted for the variance. So we submitted a
set of plans, they were approved, and we started to build. Of course, first thing we built was the pool because
of the lot.
CHAIRMAN STRAIN: Who -- when the pool was put down on a set of plans, did you do that, or
did you have an architect do that or somebody else?
MR. JENKS: A designer did it. I didn't do it.
CHAIRMAN STRAIN: Okay. Where did the designer get his information from to determine the
setback for that pool?
MR. JENKS: I think he made some calls to the county. I don't have that information. I don't work
with the designer. He's somebody that designs houses. I was sent the plans. I sent them to an engineer. I
have an engineer. I submitted it for a building permit.
CHAIRMAN STRAIN: Okay. You do -- that's what most GCs would do, so I'm not surprised at
that. I'm trying to find out -- actually, in your -- not your defense, but your client's defense, on how this error
occurred.
It appears -- up until your attorney made the statement he made, it appeared that the applicant, which
is your designer or your client, drew the plans up and submitted them to the county, the county reviewed
them, and the county erroneously approved them without notifying the client that there was an error in the
setback.
January 19, 2017
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I think the error probably was on the plan. I think the error's on both part of the applicant as well as
the part of county for not catching it. And the county missed it numerous times. I've got the plans. It wasn't
vague. It was clear. It was clear where it was. Your structural drawings show how that stair was also -- the
width of the stair was clear.
I mean, anybody that reads plans would have been able to figure this out. I can't -- I certainly can't
say the staff is not to blame in part of this. They certainly are. And I think the issue is that whoever set this
up in the site plan trying to determine what the initial setbacks were either went to the wrong table or missed
the footnote on the second table, kind of as we started out here today. There's two tables, and one is for
waterfront, one is for non-waterfront. But one has a little Subscript 3, and the other doesn't. And if you're
from another part of the county, you wouldn't be surprised at six-and-a-half feet in height because I bet you
could go up to seven.
So there's a lot of little things that came into play on this one. It's certainly understandable that some
errors were made. I just think we need to find a solution today.
In regards to how you were going to finish off this concrete wall now that's there, has anybody
looked at opportunities to, say, take away/distract from that wall by cladding it, by putting in shrubbery, by
doing embankments or anything like that?
MR. JENKS: Those were all options, and it would definitely be some landscaping on the backside
of it.
CHAIRMAN STRAIN: Okay. So you-all haven't brought anything, though, to propose today?
MR. JENKS: We did not.
CHAIRMAN STRAIN: Okay. The height of the seawall. You were the GC; the pool contractor
was subbed to you. Orick Marine, I believe, did the deck. Was he contracted through you or directly to the
owner?
MR. JENKS: Through the owner.
CHAIRMAN STRAIN: Did you work with him at all in coordinating things?
MR. JENKS: I did not; not the seawall.
CHAIRMAN STRAIN: Okay. Do you know -- is he here today; does anybody know?
MR. JENKS: He's not.
CHAIRMAN STRAIN: Okay. He certified the seawall to be done according to the plans. I see -- I
found the certification. The plans call for a 4.2 deck height, top height on the seawall cap. The plans that all
this variance request is from is a 3.2 height. I just am now -- that's a 1-foot difference. It's significant when
you look at the difference you have in what you're trying to seek as a solution to your whole operation.
And I'm just wondering, does anybody know if that seawall is actually elevated to the 4.2 that the
certification seems to insinuate?
MR. JENKS: It should show it on the survey that we turned in.
CHAIRMAN STRAIN: Well, it does. It shows 3.2, but I've got a building plan that says it will be
capped at 4.2, and I have a certification from the installer that says that's right. So I'm confused by the height
of the cap.
MR. JENKS: I don't know the answer to that.
CHAIRMAN STRAIN: Okay. The stair. Did you submit a change to the plans to have the stair
turned in that direction you've got here?
MR. JENKS: We did not.
CHAIRMAN STRAIN: Okay. I mean, it's a minor issue. It's still the same distance out, but I just
happened to notice it was twisted in a different way.
MR. JENKS: It was just easier access to the dock.
CHAIRMAN STRAIN: Well, actually, it's better for the neighbors, too. It actually makes people
using the stairs going in and out a different direction. So from that perspective, it doesn't harm anything. I
was just curious if it got cleared through another permit application. That may have had some indication to
the setbacks; may have looked at them again. That's all.
COMMISSIONER EBERT: I have a question.
CHAIRMAN STRAIN: Go ahead.
January 19, 2017
Page 13 of 46
COMMISSIONER EBERT: Have you built in Collier County before?
MR. JENKS: This was the first house I ever submitted for for a full construction. We've done lot of
remodels and additions in Collier County.
COMMISSIONER EBERT: Okay. So you, as a contractor, are familiar with our codes then?
MR. JENKS: Yes.
COMMISSIONER EBERT: Okay.
MR. JENKS: But not the code that has the height on the seawall. This wasn't done intentionally.
COMMISSIONER EBERT: No, we all kind of understand that, but --
MR. JENKS: Right.
COMMISSIONER EBERT: -- one other thing. I'm reading through this, is that a lot of this was
found last October. Is there a CO on this property yet?
MR. JENKS: There is not.
COMMISSIONER EBERT: So the people have not moved into the home?
MR. JENKS: They have not.
CHAIRMAN STRAIN: This started with a complaint that started with Contractor Licensing, and I
think in April of 2016, then it was followed up with a slab survey in May of 2016. I think that's when
everything was kind of unfolded from that point forward. But it wasn't necessarily Code Enforcement
initiated, as some of this information shows. It was Contractor Licensing that initiated it, the call. It came
into Contractor Licensing from a neighbor across the way, apparently.
COMMISSIONER EBERT: So it does go back quite a ways then?
CHAIRMAN STRAIN: Well, April of last year; a little bit less than a year ago. They've been trying
to work and get it resolved since then. It started with my office, and then it had to get continued to here.
MR. JENKS: We've continued to work on the house, but we haven't touched anything on the pool or
the pool deck since we were notified of the issue.
COMMISSIONER EBERT: Okay. So the pool deck is --
MR. JENKS: It's exactly like it was when we were told it was not in compliance.
COMMISSIONER EBERT: Okay. Thank you.
CHAIRMAN STRAIN: Anybody else have any questions of the gentleman?
COMMISSIONER SCHMITT: Yes. On that picture shown that you have on the visualizer, the
deck that is -- and this is a general question that probably the applicant, anybody, can answer. But the deck
height that is in the house on the bottom of the picture, is that boat deck higher in elevation than the existing
deck that was built?
MR. JENKS: The deck we constructed is higher than that deck.
COMMISSIONER SCHMITT: It is? Because this one -- that deck to the south appears to go over
the seawall, and it's all one structure all the way up to the pool. I'm looking at, is that -- was that the intent for
this existing --
MR. JENKS: It looks like their dock comes over the --
COMMISSIONER SCHMITT: That's it, the dock.
MR. JENKS: -- ground is what it is, and they just built the dock and went all the way back to that
seawall or to their pool retaining wall.
CHAIRMAN STRAIN: Anybody else?
(No response.)
CHAIRMAN STRAIN: Okay.
MR. SHAPIRO: Mr. Strain, I just wanted to clarify one thing. When I made the comment that -- I
guess, that the permitting erroneously gave them the wrong setbacks, so I personally have no idea. I actually
read that from the staff report, so that's where I got that information from. That's what they state in their staff
report.
CHAIRMAN STRAIN: Okay. Thank you.
Anybody else?
(No response.)
CHAIRMAN STRAIN: Any other witnesses that you want to call, or you done with your
January 19, 2017
Page 14 of 46
presentation?
MR. SHAPIRO: We are done with the presentation. There -- as you said, the only other people
would be neighbors, but I believe they go later.
CHAIRMAN STRAIN: They'll be coming up later, yes.
Okay. Thank you very much, both of you. Appreciate it.
Fred, do you have a staff report?
MR. REISCHL: Thank you, Mr. Chairman. Fred Reischl with Planning and Zoning.
You've read the staff report, and staff is recommending approval with the condition. You know
normally that variances run with the land. In this case, we're recommending that if there -- if the structure is
destroyed more than 50 percent of assessed value, that it would have to meet current setbacks.
So we're modifying it so -- because this is based on a financial hardship, we figure that financial
hardship would go away if the house was destroyed; therefore, they'd have to meet current setbacks. It would
not run with the land.
CHAIRMAN STRAIN: Okay. Are there any questions of the staff? I think, Joe, you had one
earlier. Did you still?
COMMISSIONER SCHMITT: No. I'll just hold off until we have general discussion.
CHAIRMAN STRAIN: Okay. Fred, on the -- oh, Stan?
COMMISSIONER CHRZANOWSKI: When we have that general discussion, are we going to be
allowed to ask them questions?
CHAIRMAN STRAIN: Yes. We won't close the public hearing until that's over.
COMMISSIONER CHRZANOWSKI: Okay.
CHAIRMAN STRAIN: As far as your understanding of how this originated, do you know if, in fact,
staff, at the period in which an applicant may have asked for design features of this location, this lot, was
given -- was the applicant given information to say he could use a 10-foot setback, or is that just something
that seems to be not verified?
MR. REISCHL: I don't know the answer to that.
CHAIRMAN STRAIN: Okay. At this point the only thing I can find is it was submitted
erroneously, then reviewed erroneously, and then a permit was issued erroneously. That's the best I can --
MR. REISCHL: That was my understanding, too, but I don't know for sure if someone directed
them to do it at 10 or not.
CHAIRMAN STRAIN: Okay.
COMMISSIONER EBERT: I have a question.
CHAIRMAN STRAIN: Go ahead, Diane.
COMMISSIONER EBERT: Fred, you said this is a financial hardship. I would not blame the
owners of this home on this at all, but the -- being it is -- that the pool was stopped so long ago and nothing
has been done, I would think that it would be their responsibility and not the owner's responsibility as far as
financial; is that correct?
MR. REISCHL: That's a legal question.
CHAIRMAN STRAIN: I was going to say...
COMMISSIONER EBERT: Well, I mean, we always use money, you know, in this stuff. And I
was just -- like I say, I don't feel that it should be up to the owner. But were these people -- were they told
you can proceed at your own risk?
MR. REISCHL: That's our standard answer is that, yes, you can proceed at your own risk pending
the outcome of the -- in this case was the Hearing Examiner and now the Board of County Commissioners.
COMMISSIONER EBERT: Okay. When were they told that they could proceed at their own risk?
How far back? Was this April/May when all this happened?
MR. REISCHL: The Building Department would have done that. I don't know.
COMMISSIONER EBERT: Okay. Thank you.
COMMISSIONER SCHMITT: I want to clarify. I mean, that's --
CHAIRMAN STRAIN: I was going to go there, too. Go ahead, Joe.
COMMISSIONER SCHMITT: I think it's sort of disingenuous to say they're proceeding at their
January 19, 2017
Page 15 of 46
own risk. It's a procedural process. When you come in and submit for a permit application, the applicant
submits, submits the plans and drawings, they're reviewed by staff, and they're approved by staff.
So the applicant proceeds based on the understanding that what they submitted meets in compliance
with all the requirements. I don't know if that's the proceed-at-risk issue. It is a review and approval.
MR. REISCHL: Well, it would be a risk that the variance would be approved versus --
COMMISSIONER SCHMITT: Well, wait a minute. No, I'm going back prior to when the house
was first submitted. When the application first goes in, the applicant goes in, the plans are reviewed, the
setbacks are reviewed, the setbacks are approved, and the applicant hires a builder, and they build a house
based on what the county approved.
I don't know if there's a case of sovereign immunity. I guess that's an issue from the county. Could
the county be held responsible? I'm not going to go down there, but that's not an issue. The issue here is
there's a variance, and -- I mean, in general terms, I've got to tell you what, my days in the county, this is
more post-traumatic stress than my year in Afghanistan, I've got to tell you.
I went through several of these in my tenure as the county -- or the administrator for Community
Development. And it's a case of applications coming in, the amount of applications coming in and the stress
to approve -- review and approve, and there was an error made, basically.
COMMISSIONER HOMIAK: They were given a permit that says 10 feet.
COMMISSIONER CHRZANOWSKI: How much of the house was built when this was found?
MR. REISCHL: I was not the original planner on this. One of my coworkers was.
COMMISSIONER CHRZANOWSKI: The contractor would probably know that better than you
would.
CHAIRMAN STRAIN: I was going to ask the contractor to come back up. No, you have to come
to the microphone, and maybe we've got a couple more questions for you.
Before we do, there was something I wanted to mention in line with what you were saying. The
reviewer on this, by the way, was a fellow we had hired recently from Marco Island, and it wouldn't surprise
me if, based on his knowledge of Marco Island, Marco Island would have allowed this to go to seven feet,
that might have also contributed to the error that happened.
Sir, if you could answer --
COMMISSIONER CHRZANOWSKI: How much of the house was built when the problem was
found?
MR. JENKS: The rear retaining wall was in place, the pool shell was in place, the slab was in place,
and I think we had just poured the tie beam, and we may have started framing by then. I don't have the
exact --
COMMISSIONER CHRZANOWSKI: Okay. Because there was a comment you made earlier that
you did the pool first. I could understand that, because you couldn't build a pool with the house in the way --
MR. JENKS: Correct.
COMMISSIONER CHRZANOWSKI: -- unless you built it from the waterway, which is practically
impossible --
MR. JENKS: Correct.
COMMISSIONER CHRZANOWSKI: -- which is one of the problem you're going to have if you
have to take it out. You've got to take it out from water side, which is practically impossible. You've got to
move the dock, you've got to move the boat.
So I could see, even if you told them that, hey, the pool was in the wrong place, you know, they
might as well not stop because there's nothing they can do. The house is already in the way.
MR. JENKS: That's true. That's true. We didn't do anything to make it any harder to remove this
pool or, you know --
COMMISSIONER CHRZANOWSKI: Yeah. But once the house is up to the tie beam, you're not
going to get back here to do anything with the pool.
MR. JENKS: Correct.
COMMISSIONER CHRZANOWSKI: Not easily.
MR. JENKS: Not easily.
January 19, 2017
Page 16 of 46
COMMISSIONER CHRZANOWSKI: Well, you can do anything you want if you've got enough
money. Okay. Thanks.
CHAIRMAN STRAIN: I've got a question, a follow-up.
MR. JENKS: Yes.
CHAIRMAN STRAIN: You anchored the pool, not with piling, with tie grade beams is what
you -- that's the only thing holding the pool down?
MR. JENKS: Pilings.
CHAIRMAN STRAIN: Oh, you've got piling as well.
MR. JENKS: And footers, yeah. It's sitting on pilings.
CHAIRMAN STRAIN: Okay. Now, there was a cost put in the report that said it would be about
$50,000 to remove that pool and then, of course, it would have to be redone, then all the debris would have to
be removed. I know it's not finished, but I would think the 50,000 is certainly a number that's probably
realistic in looking at the condition it's in today just to get that concrete taken out and hauled away, if not
more.
So to answer -- Diane seemed to think you stopped construction and, if you did, maybe your value to
replace the pool wouldn't be as great. I think the 50,000 is probably conservative in cost-wise to clean this up
if it had to be.
MR. JENKS: It probably is. And it wouldn't -- nothing changed back there. You know, if it
was -- we continued with the house at our own risk. We still have to get all the stuff back around the front of
the house, so we didn't change anything of tearing the pool out.
CHAIRMAN STRAIN: Okay. Thank you very much.
MR. JENKS: Thank you.
CHAIRMAN STRAIN: Did you have anything?
COMMISSIONER HOMIAK: No.
CHAIRMAN STRAIN: Okay. With that, we will go to -- we'll start with registered speakers. As
your name is called, please come up to one of the microphones, identify yourself for the record, and if your
name is hard to spell, just please spell it for the court reporter so we don't get it mixed up.
MR. REISCHL: The first speaker is Edward Tappen followed by George Marks.
MR. TAPPEN: My name is Edward Tappen. I spell my name T-a-p-p-e-n.
CHAIRMAN STRAIN: Thank you.
MR. TAPPEN: Was there anything else?
CHAIRMAN STRAIN: No, sir, that's fine. We're off to a good start.
MR. TAPPEN: For the last year I've been an advocate for having Collier County establish common
municipal golf courses. Collier --
CHAIRMAN STRAIN: This -- sir, are you here to talk about the golf course?
MR. TAPPEN: Yes, I am.
CHAIRMAN STRAIN: This is not that one.
MR. TAPPEN: Pardon me?
CHAIRMAN STRAIN: We're not talking about that right now. It's coming up in about --
MR. REISCHL: That's the next item.
CHAIRMAN STRAIN: That's the next item. This is about a pool variance, swimming pool
variance.
MR. TAPPEN: Okay. Sorry. I thought my name was called.
CHAIRMAN STRAIN: No problem. Save his card for later.
MR. REISCHL: There was no item listed on it.
CHAIRMAN STRAIN: No, I'm sorry. It was a mix-up on our part.
MR. TAPPEN: Will I be back soon?
CHAIRMAN STRAIN: I hope so.
COMMISSIONER CHRZANOWSKI: We hope.
MR. REISCHL: And I know I called Mr. Marks next, but his attorney, Patrick Neale, requested to
go before Mr. Marks.
January 19, 2017
Page 17 of 46
CHAIRMAN STRAIN: Yes.
MR. REISCHL: Patrick Neale followed by George Marks.
CHAIRMAN STRAIN: And, by the way, for those of you who have not attended our meetings
before, speakers are limited to three minutes unless waived. We generally don't enforce that as long as the
information you're providing is not redundant and it's not repetitive. So we're here to listen to you. Just be
conscious of everybody's time, please. Thank you.
MR. NEALE: Good morning, ladies and gentlemen. Patrick Neale, N-e-a-l-e, for Mr. and Mrs.
Marks who are in opposition to this variance.
What I'd like to bring the Board's attention to is -- the Commission's attention to is more the legal
issues that revolve around this.
As you're probably aware, there are, you know, eight criteria that are involved in the granting of a
variance. A variance is not something that's to be taken lightly. There's a great deal of case law out there on
variances, and I'm not about to bore anybody with doing what I have to do all day, which is read case law, so
I'm not going to do that.
But what I'd like to bring to the Board's attention is a case called Indialantic versus Nance, which
really sets out the primary issues as to a zoning variance. And the prerequisite to a granting of the variance is
the presence of an exceptionally unique hardship to the individual landowner, unique to that parcel and not
shared by other property owners in the area.
There's nothing unique about this situation for the landowner. The landowner simply went in, had a
design professional who did not know what they were doing, frankly. They came in and submitted a plan
that was in error based on the evidence of record at this point, and then proceeded to build based on that.
Now, yes, they did rely on the county's assertions, but in my experience in dealing with county
permits -- and I've been here for a while -- typically the permit says that it's the responsibility of the
landowner and their design professionals to meet the code. It's not the responsibility of the county to make
sure the design professionals did their jobs properly.
So we'll go through -- and I'm going to very briefly go through the eight different criteria -- any
special conditions and circumstances particularly land, location, size, and characteristics of the structure. And
in this case there are none. These are essentially lots that are all pretty much the same within a development
wherein the Land Development Code sets out what the standards are for this kind of construction.
And we've heard ad nauseam what the standards are, as it's a -- it's a 20-foot setback here. And this
is a significant deviation from that. It's a 50 percent deviation from the setback, and it's about a 60 percent
deviation from the height. So it's a very significant deviation.
Any special circumstances do not result from the action of the applicant. Every problem here results
from the actions of the applicant. The applicant is the one who made the error in submitting the application.
Yes, the county may have messed up, and they occasionally do that, but in this case, still it's the applicant
who had -- who made the erroneous application.
Will a literal interpretation of the provisions work unnecessary and undue hardship on the applicant?
I say that this is not unnecessary undue hardship because they're the one that made the mistake in the first
place.
Will the variance, if granted, be the minimum variance to make possible a responsible use of the
land, building, or structure? The minimum use of this is to build a house, and they're going to be able to build
a house; they're just not going to be able to put their pool as close to the water as they want it to be.
Will it confer on the applicant any special privilege that's denied by these zoning regulations? Well,
yes, it does. What it does is allow this person to build their pool where no one else can build it under the
same set of circumstances. So, yes, they are getting a special privilege.
Is it going to be in harmony with the general intent and purpose of the LDC and not injurious to the
neighborhood or otherwise detrimental to public welfare? Well, it's not in harmony with the LDC; that's
clear. And I will get testimony here later that will state that it's injurious to the neighborhood.
Natural conditions or physically induced conditions? No, there's no natural conditions or physically
induced conditions. This was a bare lot in a subdivision.
Will it be consistent with the Growth Management Plan? Well, yes, it is. I will admit to that; so it is
January 19, 2017
Page 18 of 46
consistent with the Growth Management Plan.
So, therefore, I mean, I believe and I would argue that this doesn't meet any of the criteria for the
granting of a variance and that the variance should be denied. And so that is all I have to say. Thank you
very much.
Any questions, please?
CHAIRMAN STRAIN: Yeah. Patrick, do you have --
Pat, I've got a couple.
MR. NEALE: Sure.
CHAIRMAN STRAIN: The Atlantic (sic) case that you cited is a 1982 case?
MR. NEALE: Yes.
CHAIRMAN STRAIN: I did notice you didn't provide it as backup. And did you do any research to
verify that the variance criteria language in there -- in that case in 1982 was identical to the variance
language -- let me finish first. One at a time.
MR. NEALE: Sorry.
CHAIRMAN STRAIN: That way it's identical language that we have in today's code. Because in
1982, we didn't even have -- our GMP wasn't even enacted yet. So we had -- that was an 82-2 code in Collier
County. Have you done any of that research?
MR. NEALE: Yes, I did; I did. And I went through and, what we call, Shepardized the case and
checked future cases and, basically, they all mirror the same language. And, actually, our code very closely
mirrors the language that's set out in Indialantic and other cases that are subsequent in its progeny, so...
CHAIRMAN STRAIN: You didn't bring any of that with you?
MR. NEALE: I didn't. I wasn't going to make full-blown legal argument here because --
CHAIRMAN STRAIN: Well, we definitely would have appreciated you doing that.
MR. NEALE: I can do that.
CHAIRMAN STRAIN: You said it's not in harmony. How come it is in harmony in the community
that I believe you actually lived at on Marco Island? How come it's in harmony in Isle of Capri? How come
that height would have been in harmony elsewhere in the county but, uniquely at Vanderbilt Beach, it's not in
harmony?
MR. NEALE: Well, as you know, legislative decisions are made. This is -- obviously, that would be
a legislative decision setting out the code as opposed to a quasi-judicial decision. And legislatures can make
decisions such as that based on the character of that particular community. So the legislature as it was, the
County Commission, or those -- Marco City Council made those decisions at that point in time.
CHAIRMAN STRAIN: Okay. And I can ask staff this, but I think you probably have the same
answer. This Board's responsibility is to review consistent to the Land Development Code; is that not true?
MR. NEALE: Yes, sir.
CHAIRMAN STRAIN: Thank you.
Next speaker, please.
MR. REISCHL: Next speaker is George Marks, followed by David Galloway.
MR. MARKS: Good morning, everyone. My name is George Marks. I live at 319 Lagoon Avenue
in Naples.
And I am a licensed architect, and I am here for a reason that I think is important to the entire
community of Vanderbilt Beach. What has -- I, quite frankly, myself and the other neighbors, we feel badly
for the people that are trying -- the applicants here that are building this property.
They hired a designer, they hired a builder, they hired everybody to build this for them, and their
house has been built. And, quite frankly, we think they're building a nice house. The problem becomes the
issue of the pool, and the problem becomes not just the -- not just the issue of the fact of the way this exists
now, but the precedent it sets going forward.
We don't believe there's a hardship here. We all know that you can't create your own hardship. I've
sat on your side of the table. I understand the legal on -- Mr. Neale has already addressed that, and I'm not
going to repeat that.
But the key issue that Mr. Shapiro stated was that all of his pictures were taken from aerial views. It
January 19, 2017
Page 19 of 46
did not show the actual height of the pool. I can use the -- your projector there.
CHAIRMAN STRAIN: We need to have something kept. You can't -- you'll need to send that
to -- can you send that to staff --
MR. MARKS: I will email it to Mr. Reischl as soon as we're done.
CHAIRMAN STRAIN: Thank you.
MR. MARKS: Okay. If you -- can you -- does that work okay? Can everybody kind of see that?
So if you look at the pool over here that is on the right --
CHAIRMAN STRAIN: It's not on, sir.
MR. MARKS: Thank you.
If you look at the pool that's set over here on the right, this pool is six-and-a-half feet above the
seawall. I'm rounding, of course. This is the property directly adjacent to it, and you can see that in that case
the pool is significantly within the zoning.
If you look at the property to the other side -- so on both sides of this property you can see the pool
over here on the adjacent property, that is also within the guidelines, and significantly lower than the height of
the pool that is being provided here.
We're here trying to be practical, and we're here to understand that this is a difficult situation, but we
believe that when the county enacted their zoning law, there are pools that exist that are higher -- at the higher
level, but in good planning -- we moved to Collier County because you've done such a great job with
planning.
All that we're asking you for is to enforce the actual zoning laws that you put in place. You lowered
the height of the pool, and you gave them the option of building -- if you're greater than a 20-foot setback,
you have to be lower. If you're set back, you can be higher. Why is that? It's for visual corridor.
What we don't want to have happen and the main reason I'm here is that we do not want this variance
to be granted and then the next person that's further away from the gulf says, well, now I do have a hardship
because you allowed that pool to stay in exact, not being within code, and then this becomes a cancer that
spreads throughout the entire Vanderbilt community.
We are just asking you to enforce the laws that you have. We understand the burden. I'm not going
to use the word "hardship" because that's a legal term that we do not believe applies here.
To not be unreasonable, we as the neighbors that are objecting and asking that this be held, we
understand that all the dimensional variance has already been talked about. This is 60 percent higher. It's 60
percent closer to the canal than it should be.
Our concern is that the visual corridor, Mr. Strain, that you spoke about, becomes narrowed. And if
you allow this to continue across the whole length of the canal, that visual corridor is diminished. This is not
a property on the gulf or on a wide canal. If you allow this to happen, it narrows that visual corridor as much
as 20 feet for that entire corridor for a corridor that's not that wide to begin with. That's the reason we're here.
That's the reason we're spending our dollars in hiring Mr. Neale, and that's the reason we're making (sic) our
time to be here tonight.
Our suggestion to make a compromise solution to this -- and you asked Mr. Shapiro if he came with
a compromise. You asked him if he had a solution. We're here to offer a solution. Our suggestion is that the
fact that they are even -- they're even violating their own 10-foot setback requirement by three and a half feet.
Our suggestion is, leave the layout where it is but lower the height. If you look at this photograph,
you can see how it is grossly higher than the properties that are adjacent to it. And our -- you can see it in that
picture very clearly.
Our -- we're not trying to be unreasonable. We're offering a reasonable solution that says, lower the
pool to the required height setback, because we believe that is the bigger issue than the setback. The setback,
the steps being six inches wider, we're not here to object to that.
We're hoping to have the variance defeated. If we have to, and we have to go to the commissioners
and that is -- and this variance is granted, we are prepared, because of the importance of this issue by not
creating a precedent to appeal at a higher level, we would much rather be reasonable people and have a
reasonable solution today that takes care of this issue.
Thank you.
January 19, 2017
Page 20 of 46
COMMISSIONER CHRZANOWSKI: Could I ask you a question?
CHAIRMAN STRAIN: Stan?
MR. MARKS: Please do.
COMMISSIONER CHRZANOWSKI: The house -- as I understand it, that white house, the floor is
built to FEMA elevation?
MR. REISCHL: Correct.
COMMISSIONER CHRZANOWSKI: How come it looks so much higher than the other two? Are
they not?
CHAIRMAN STRAIN: I don't know. I don't think he could answer that.
COMMISSIONER CHRZANOWSKI: Well, if you took the pool out, you'd still be looking at a
white face of the wall of the house because it's built to FEMA elevation. You wouldn't see anything different
from this view that I'm looking at if you took the entire pool out. So it would still look the same as -- you
know, higher than the houses on both sides.
MR. MARKS: This view is not the objection. The objection is when you're on the adjacent
properties and you're looking out the canal, the fact that pool is six-and-a-half feet above. If it was at the
four-feet requirement, you would still be able to see and have a visual -- not as detrimentally impact the
visual barter (sic).
COMMISSIONER CHRZANOWSKI: Okay. So this view, even though you showed it, doesn't
really mean anything?
MR. MARKS: We did not wish to violate the neighbors' rights and walk on their property to take
these pictures.
COMMISSIONER CHRZANOWSKI: And the neighbors have no problem with this?
MR. MARKS: I'm not -- the neighbors --
CHAIRMAN STRAIN: We haven't heard all the testimony.
MR. MARKS: We heard that objection on the 43 versus eight. I'm not here to exaggerate any
issues.
COMMISSIONER CHRZANOWSKI: Okay. I'm just -- I was just curious what the objection was
with that view. It will look like that when they take the pool out.
MR. MARKS: I'm using that view to just show the gross difference in the heights.
COMMISSIONER CHRZANOWSKI: Okay. Thanks.
MR. MARKS: Thank you.
COMMISSIONER CHRZANOWSKI: But that's due to FEMA.
MR. MARKS: That's not the issue in play here. The issue in play here is the pool, not the height of
the building.
COMMISSIONER CHRZANOWSKI: Okay.
MR. MARKS: We have no objections to the height of the building.
CHAIRMAN STRAIN: Go ahead, Joe.
COMMISSIONER SCHMITT: I want to go along the same lines. Mr. Marks, is it?
MR. MARKS: Yes, sir.
COMMISSIONER SCHMITT: Just, again, for the record, you're showing a comparison to the
height. But you do not have any information on when that house that you're showing now, the brown house,
which, as I look at it, to the -- from the back, to the left, you don't have any information on when that was
built or what the base flood elevation requirements were for that -- on that house when it was constructed;
likewise, the house on the right?
There's been significant changes -- and you know this, you're an architect -- in the flood elevation
requirements, as Stan alluded to, the base flood elevation, and mandated by the flood zone. And, regardless,
you made a statement about reducing the height. They can only reduce the height of the pool, not the house.
MR. MARKS: Absolutely. We have no objection to the height of the house. The purpose of this
variance is only the pool, and we're keeping our comments just to the pool.
COMMISSIONER SCHMITT: Right. So but the house -- clearly, the house that you're showing
here to the left of the home that's in question, as I look at it from the back, the base flood elevation is clearly a
January 19, 2017
Page 21 of 46
different elevation than what was now required.
MR. MARKS: I am not in a position to answer that one way or the other, sir.
COMMISSIONER SCHMITT: Okay. You brought up the comparison. I'm pointing out the
difference.
MR. MARKS: Understood. Thank you.
CHAIRMAN STRAIN: Okay. I have a question, a couple questions. First is the County Attorney's
Office in regards to the -- now, this setting a precedent. Could one of the county attorneys opine on whether
this does or not?
MR. KLATZKOW: Does it set a precedent? No.
CHAIRMAN STRAIN: Thank you.
Mr. Marks, are you licensed in the state of Florida as an architect?
MR. MARKS: My firm does work here. I am personally not licensed.
CHAIRMAN STRAIN: In the state of Florida?
MR. MARKS: Correct.
CHAIRMAN STRAIN: Are you licensed at all?
MR. MARKS: I am, yes, sir.
CHAIRMAN STRAIN: What state?
MR. MARKS: Pennsylvania.
CHAIRMAN STRAIN: You indicated that they could leave the pool but lower the height. As an
architect, I don't know if you do structural engineering or designing as well. Do you do just architect or do
you do structural included in your firm?
MR. MARKS: I have a BS in structural engineering.
CHAIRMAN STRAIN: Okay. Do you know that this is built with grade beams and piling?
MR. MARKS: I do.
CHAIRMAN STRAIN: How would you expect them in to lower the pool?
MR. MARKS: They would have to remove the pool. They'd have to cut off the top of the piles, they
have to remove the grade beams. I understand the implications.
CHAIRMAN STRAIN: I just want the audience to understand and the people on this panel to
understand it. Thank you.
You indicated that -- the concern about the view corridor going up and down east and west of that
canal. First of all, you live opposite the water from this unit down a little bit about -- over a hundred feet
away; is that correct? The canal's a hundred feet wide, an assumption.
MR. MARKS: I am two properties down across the canal.
CHAIRMAN STRAIN: Okay. Your concern is up and down the canal and you feel -- I thought you
stated that if this went to four feet, as required by the code, and they left it that location, they could actually
build the cage like the house you have on the left here. How would a 4-foot-high pool with a cage like that
change the view perception when we're only talking two-and-a-half feet overall? So what -- how do you see
that happening when you could still put the same structures on top of the deck and have the same view
corridor that you've got with or without the two-and-a-half feet?
MR. MARKS: You can see through a cage. It's a little tough to see through concrete.
CHAIRMAN STRAIN: So up and down that canal people would be seeing through these cages to
get views of the waterway?
MR. MARKS: If that is what is permitted by code, I support it. I'm only asking that the county
enforce the zoning code as they have presented it.
CHAIRMAN STRAIN: Okay. Thank you. That's all I've got.
COMMISSIONER EBERT: I have a question. Is the seawall at the same level for these properties?
Is the seawall all even?
CHAIRMAN STRAIN: No. If you look at this map, this is an example of what I was trying to get
the applicant to have responded to earlier. That seawall they put in, according to the certified building
permits, it's one foot higher than the seawall to the left. This actually shows that. And I'm assuming that you
are not any more familiar with this than I am in that regard.
January 19, 2017
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MR. MARKS: I would look at the picture same as you saw it.
CHAIRMAN STRAIN: That one foot I'm not sure was taken into consideration when this whole
variance height part of it came into play because the surveys I'm showing called out the old height of the
seawall, not the new height that was certified to, which changes the deviation of a foot. So instead of 50 or
60 percent off, we're a little bit -- we're another foot, which will take it down substantially. I'm just not sure
how anybody measured this or where the measurement came from.
MR. MARKS: I would believe some verification would be there, because if the -- if the actual deck
is six-and-a-half feet above that seawall, the condition's actually worse.
CHAIRMAN STRAIN: Right. But according to the information supplied, it's six-and-a-half feet
above 3.2. That's the old height, not the new height. And that's the best I can tell you from the documents
I've read, so...
MR. MARKS: I'm not in a position to --
CHAIRMAN STRAIN: It would have been to the benefit of the applicant to have researched that. I
wish they had.
I don't have any other questions.
Thank you, sir.
MR. MARKS: Thank you, everyone.
CHAIRMAN STRAIN: Next speaker, Fred.
MR. REISCHL: Next speaker is David Galloway followed by Nancy Burns.
CHAIRMAN STRAIN: By the way, we will take a break at 10:30.
MR. GALLOWAY: David Galloway, resident of the Vanderbilt Beach residents area.
And, you know, we listen to these issues many times. I have to applaud the Planning Commission. I
know there's a lot of research done on your part; I really appreciate it as just an average citizen out in Collier
County.
I feel for the true applicants, the owner of the property, because it's not their fault even though they
hired the contractor, the architects, and whatever, and I feel for them on this issue.
I somewhat feel for the builder, the architects, but they didn't do their homework. They didn't do it
properly. And even if it was a new employee or newer employee that was -- new issues from Marco Island,
they obviously didn't know Collier County, so I think that the Collier County has a true problem here as us as
the government.
I think possibly that when we start issuing hardship variances based on financial, it's -- we should not
be making other people's problems our problems, and I say that in all respect, because we've all been through
this. I think the only people that make really some fees here are the attorneys. If you look, both sides have
attorneys. And it's unfortunate they have to spend the money on their attorneys. It's unfortunate on both
sides.
I come here free gratis, my time, but it's also an issue that I think we have to -- we have great zoning,
and code ordinances in Collier County over the years have been developed very strongly, and I support those;
I follow them as they've been developed and the people that do -- the commissioners that do enact them.
But we have to do this equally and fairly across all lines. And it's a slippery slope when we start
granting variances just based on financial hardship even though it's 50,000, 25,000, or 100,000. But also the
county should be responsible for some of this also and not just saying, well, everybody made a mistake. Let's
just let it go away, because it's not fair to the other citizens that live in that community also.
So I speak only as a concerned citizen that we have to constantly, in the Collier County, enforce the
ordinances and the code equally across the board so that there's -- we don't have these kind of long, drawn-out
Planning Commission meetings where everybody gets involved in these.
And I think that -- overall, I think this could be remedied, but it's an issue that's going to come up
again, as we know, someplace in the county, whether it's Marco Island or whether it's here, and northern
Collier County, but it's an issue that has to be addressed, and we have to get the personnel that are going to be
reviewing this and looking at these things so it doesn't come to this point again. Thanks.
CHAIRMAN STRAIN: Thank you.
We have time for one more speaker.
January 19, 2017
Page 23 of 46
MR. REISCHL: Nancy Burns.
MR. SHAPIRO: We have a speaker that has to leave at 10:30.
CHAIRMAN STRAIN: Sir, we're -- okay. Yeah. You're not supposed to be doing that. Thank you.
MS. BURNS: Nancy Burns, and I'm a resident of Vanderbilt Beach, Gulf Shore Drive.
Anyway, I do support the Planning Board, and I do believe that the county has an obligation to
validate our issues and also support the codes.
I really feel for the people. I'm sorry that it's happened for them, but I do feel code should be
enforced.
CHAIRMAN STRAIN: Thank you. That was quicker than I thought. We have one speaker,
apparently, who has to leave at 10:30. On that basis, we'll try to accommodate them if they'd like to come up
to the microphone. Identify yourself for the record.
MR. JORGENSON: Thank you for doing that. I appreciate it. My name is Jerry Jorgenson. I live
at 367 Lagoon Avenue. I've been there for 11 years.
I have to disagree with Mr. Marks fantastically about the views. With all the trees, palm trees,
everything that we have, you can't see up and down the canals anyway.
I live right across the street from this property. I looked at a garbage home for 10 years. I had to call
inspectors out to get it cleaned up because there was renters there at one time, and the lady was very nice
enough to get it taken care of for me.
I'm going to tell you something; I drive those canals all the time, and there's a lot of these high things
out there, some prior to the codes, some changed. And, by the way, that wall you're talking about, all the new
ones go in now, and you're probably aware, that they are a foot higher now. So whenever you put in a new
seawall, it has to go up one foot higher than the old seawalls, so we have seawalls going up and down, up and
down until people build, so it really looks kind of ugly, to tell you the truth. It would be nice if we could all
have our seawalls the same height. So there's a lot of issues that occur when you're building.
In this case, I live directly across the street. I'm very pleased to see the house the way it is. I don't
see it being an eyesore in any way, shape, or form. I'm sorry that the county made a mistake. If they
wouldn't have, we wouldn't be standing here today. And maybe the builder made a mistake.
The problem is, is what -- your point you made regarding the cage or someone's point regarding the
cage, that is exactly correct. It doesn't -- if you go down our canal, we have some of the ugliest structures that
you want to see. I do rather (sic) try to fight to get these things taken down like I did a lot of huts that used to
be on the thing. They were falling apart during the hurricanes, and they finally took them down. The county
come out and said, they're not in compliance; take them down.
And then these grass hut things. But on our canal on his side that he looks at, he looks at a lot worse
thing than that, I can tell you. We have double-deck wooden structures. They were built, you know, back in
the day when you could do that, okay, and they were ugly as heck; painted, peeling, ugly-looking decks.
There's one guy who keeps his up nice. The other one, he's got a big tent on top of it. I mean, you're talking
about -- as you're going out of the canal, we're talking about a beautiful home that's going to have a
beautiful -- they have every intentions of putting shrubberies and stuff in there.
And I don't care what he says; you can't see up and down regardless. I could stand on that side of the
canal and sit at Marge and Rich's house on their patio, okay -- I go over there and visit them a lot -- and we
can look right down the canal, and you know, it doesn't obstruct anything.
All of our homes, our views, even my home which was built a long time ago -- I walk out to my pool
from ground level because we were built before the codes changed. And I didn't build it; somebody else did.
And when we sit up in our home -- we live up in the upper level of our home -- we see everything
because we have a northern view, you know, looking -- and it's -- we're so happy this is going up that I'm
ecstatic.
We have a lot of old homes still in our area, and they keep going down. And as you go out the
canal -- I don't know, Mr. Marks' house, whoever, he's got a big pool wall with a sand thing next to it. It's, in
my opinion, very unattractive to look at. Not his wall but, you know -- it's just fine. It's the way it is. And
he's allowed to do that, and that's fine. We don't have an issue with it. I don't know him very well, and that's
his business what he wants to do.
January 19, 2017
Page 24 of 46
But in my opinion, you do have -- do follow codes. I'm a car dealer. I've built dealerships. We go
for variances all the time. You have to go for variances sometimes in life to make things easier and simpler
to deal with. If you didn't have variances, what would we have to go back and even -- let's just say they
wanted a variance before they built because they needed to do it in this particular way because of
room -- they don't have much room -- there's not much property there, so you have to kind of utilize it the
best you can.
And I'm going to tell you what; it's real nice looking across the street and seeing a beautiful home
with a nice wall. And this gentleman Stan, he had a terrific point. I'd rather look at that pool wall than have
that pool way down here. Now I'm looking at them trying to build steps to get down to the pool wall, and
you're still looking at a wall. And I'm right across the street, literally.
And the boat blocks the view anyway, but I like looking at boats, because I have one, too.
So thank you for the time. I really appreciate it. And I hope you take under consideration that there's
a lot of us there that have no objection to this. I mean, I talked to some of my neighbors; they're not here to
speak for themselves, but they said, sure, we don't have a problem with this. I mean, what does it matter?
I mean, I agree with rules and stuff, but this one fell through the cracks, and that's why you have
variances.
And I thank you guys and -- for your time and efforts and the time you guys put into your jobs.
Thank you so much for letting me speak early. Appreciate it.
CHAIRMAN STRAIN: Thank you, sir. Now, with that, we will take a break until 10:45, and then
when we get back, we'll resume with public speakers and then after, the rest of our agenda. Thank you.
(A brief recess was had.)
MR. BOSI: Chair, you have a live mike.
CHAIRMAN STRAIN: Okay. If everybody will please resume their seats. We left off with public
testimony. We're going to resume with public testimony, and Fred will be calling the next speaker.
MR. REISCHL: Steve Emens, followed by John Prestwood.
MR. EMENS: I'm Steve Emens, 331 Lagoon Avenue. I am the person who called in April because
I noticed that going up.
The main reason why I called is I know the code. And at that time, before -- they had the slab down,
before they built the ceiling, construction (sic) this, I wanted to give them the opportunity, because I knew it
was going to cost them a lot of money at the end if they didn't get a variance or if they did not get it approved.
That's why I called at that time.
I couldn't believe that it got missed because you have your architect that has to do the site plan and
the surveyor, your pool contractor has to submit plans with elevations on it, so that's another permit where the
elevations got missed besides the basic permit.
So the seawall guy submitted his and, yes, that seawall is up one foot, and the elevation of the deck, I
measured it, is six foot from the new seawall. So that's where that stands.
And I watched everybody come out and survey the whole property in April. And then nothing
happened. Nothing happened. So now they're applying for a variance after the house is already built. Okay.
We're so far along now, we can't do it. It cost too much money.
The homeowner's not at fault, I understand. They depended upon a licensed architect; they depended
upon a survey that should have been signed and sealed; they depended upon the pool contractor that should
have had signed and sealed plans because it has engineering. You can't submit any plans without signed and
sealed. You have to have your elevations on it.
Now, those professionals are insured professionals, and they should know the codes in Collier
County.
The house is beautiful, okay. Nothing wrong with that. It's a great-looking house. The view's good.
It's just that it's not to code. It got passed. I don't know what reason. I've seen things happen a lot of time
where -- well, I don't know the case, so I'm not going to speculate on it -- where somebody said, hey, oh, can't
you just do this for me? Sure we can. And then they build it, and then it's too late, without going back,
resubmitting plans. I don't know that.
But I do know across the street there's a new house under construction about the same stage they are.
January 19, 2017
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They're putting their trusses on right now. The house is 20-foot setback. The pool is a 10-foot setback, and
it's 10-foot, and they have their stairs coming down.
And in reference to FEMA code, I know that swimming pools and auxiliary setbacks do not have to
be at that FEMA height. They can be below FEMA height. But you can build anywhere in Vanderbilt at
grade without a height requirement for that pool to be FEMA. It's the pool equipment, electronics, and the
main house structure. And that's my understanding. So that's --
CHAIRMAN STRAIN: Okay. Stan?
COMMISSIONER CHRZANOWSKI: You said you called. Who did you call?
MR. EMENS: I called Code Enforcement first. I didn't know whether it was a building or a code
violation. That's where I noticed it was --
CHAIRMAN STRAIN: A slip came in from Joseph Norris, who is a code compliance for the
Contractor Licensing. That's the memo in the file that says you called them. It's got your cell number 860
something or other?
MR. EMENS: Yeah, 8070. Yeah. I called him. He goes, oh, no, I'm going to forward that on to
whomever.
CHAIRMAN STRAIN: Well, the only record, the only report is for code licensing. I found
under -- Code Enforcement didn't get involved at that point. So your call into licensing isn't --
MR. EMENS: Well, yeah, because they turned it right over to that. They said, oh, you're calling the
wrong people here.
CHAIRMAN STRAIN: Well, he went out and took pictures and photographs of the site. So he
actually did some of the followup.
MR. EMENS: Right, and that's where it all started back then.
COMMISSIONER CHRZANOWSKI: And there's pictures that show what stage it was at when this
call was made?
CHAIRMAN STRAIN: Sure. We can put them on the overhead if you'd like. This is
basically -- it's a similar stage to what you've already got.
MR. EMENS: Yeah. I knew it was going to be trouble.
CHAIRMAN STRAIN: There's seven or so pictures. That's one of them.
COMMISSIONER CHRZANOWSKI: And what stage was it at?
CHAIRMAN STRAIN: About what it is today. They have a -- I think --
COMMISSIONER CHRZANOWSKI: So the house was there?
CHAIRMAN STRAIN: Yes.
MR. EMENS: Not in April it wasn't all there. They poured the slab, and they were putting up --
CHAIRMAN STRAIN: Mr. Norris went out and took these pictures after -- in response to the call.
So I didn't -- I mean, I haven't got one of the house. That's a picture of what you just about saw.
MR. EMENS: Right. The pool was there because they built it before the house went up.
CHAIRMAN STRAIN: Right.
MR. EMENS: But then when I saw that, it was out -- I went over, I measured it. I -- and I'm
thinking, okay, you going to do your final survey at the end, and now --
CHAIRMAN STRAIN: What did you measure it with? Did you use a --
MR. EMENS: Tape measure.
CHAIRMAN STRAIN: Tape measure?
MR. EMENS: Yeah, yeah. I hooked it on the --
CHAIRMAN STRAIN: Now, you're the complainant, and you went on the property that you filed a
complaint against to show that they were in error. Did you get their permission to go on their property?
MR. EMENS: No, I did not.
CHAIRMAN STRAIN: Okay. That's kind of odd. I don't know -- I've never heard anybody doing
that before.
MR. EMENS: Well, no, I just walked around and --
CHAIRMAN STRAIN: Okay.
COMMISSIONER CHRZANOWSKI: Trespassed.
January 19, 2017
Page 26 of 46
MR. EMENS: I just saw it, and I wasn't sure, okay, so I measured it.
CHAIRMAN STRAIN: You have some -- I noticed in looking at your name -- and I didn't have
your last name; I had your phone number. When I plugged the phone number in to Google, it came up -- you
had some YouTubes done, and I guess you do pool work for Nassau Pools.
MR. EMENS: I build swimming pools, and that's how I knew the code.
CHAIRMAN STRAIN: Right. Okay.
COMMISSIONER CHRZANOWSKI: I'm still curious what stage the house was at, because the
information I got before was that the house was partially up when this happened, and he's saying the house
was not up at all.
MR. EMENS: Well, the walls were up, but it was clear access. You could come straight through the
front over the slab right to get to the pool at that time. There was no -- nothing inside. It was open.
CHAIRMAN STRAIN: I think we can let this one go for now. That's more if the applicant wants to
deal with the trespass; that's not our issue.
Thank you, sir.
MR. EMENS: Yeah. Okay.
CHAIRMAN STRAIN: Next speaker, please.
MR. REISCHL: John Prestwood followed by Ronald Rossbach.
MR. PRESTWOOD: John Prestwood, P-r-e-s-t-w-o-o-d. I'm a neighbor also on Lagoon. And I just
wanted to support Mr. Marks' and Mr. Emens' comments and those from Vanderbilt Beach Residents
Association that I'm concerned with the code, again, not being enforced. And I realize the more I hear here,
it's a very complex situation in terms of the number of errors or perhaps the number of missteps that have
been made along the way.
I'm in insurance by trade; retired now. I also wondered about the liability that someone else will
probably need to determine in this regard, depending upon how you rule, but there is errors and omissions
insurance also with respect to the professionals all mentioned here: Architects, builders, engineers, and so
forth. I don't know about the county. I wouldn't surmise on that. But it seems like there's a lot of missteps
that have been made.
So I would encourage you to enforce the code. If there's something that can be done to accommodate
things, fine.
As far as materiality, $50,000, maybe that's for you to decide. We're talking about
multi-million-dollar homes here in this neighborhood. Fifty thousand dollars on a house in Golden Gate
might be a lot different than $50,000 in Vanderbilt Beach.
That's all I have to say. I support the -- Mr. Marks', Mr. Emens' comments, and I appreciate your
work. Thank you.
CHAIRMAN STRAIN: Thank you, sir.
Next speaker?
MR. REISCHL: The next speaker, Ronald Rossbach followed by Margaret Rossbach.
MR. ROSSBACH: Hi. I'm Ronald Rossbach. I live at 355 Lagoon, just opposite the canal, in the
canal where the house is.
I just want to know let you know we have no objections. As a matter of fact, we felt that the whole
situation there, the building and the boat and everything, just enhances our view of the canal.
CHAIRMAN STRAIN: Thank you, sir.
MR. REISCHL: The final registered speaker is Margaret Rossbach.
MS. ROSSBACH: My name is Margaret Rossbach. I am Ronald's wife. I live at 355 Lagoon
Avenue, and I'm directly across from house in question.
And before that, we have been -- we built our house in 1980. We've been here over 30 years, and we
love it here. This is paradise.
And from a woman's point of view, this is so gorgeous that it just enhances the neighborhood, and I
don't understand why -- or I won't understand if this is not going to be approved because it's just all positive.
Before that, then there was a house that it was a duplex. It was much older than our house. I'm sure
Jerry, if he was here, he would say I'm one of the houses that he doesn't like, but I love my home, and it's
January 19, 2017
Page 27 of 46
going to be there until I kick the bucket.
And I'm 86 years, going to be 87. So they're going to have to wait a while, because they take such
good care of you here in Naples that sometimes you live to be 90 something.
So this is not the first time I'm going to come here to beg you to just let this go on and let us all be
happy. Thank you.
CHAIRMAN STRAIN: Thank you, ma'am.
Next speaker?
MR. REISCHL: That was your final registered speaker.
COMMISSIONER DEARBORN: Thank you.
CHAIRMAN STRAIN: Would you put something on the overhead. I need to clarify one item. It's
Page 10 of the staff report, which is the black-and-white survey. You don't have the staff report?
MR. REISCHL: On my computer, electronically.
CHAIRMAN STRAIN: You guys. We need to have printers in this room, I can tell. Diane, can I
borrow yours?
COMMISSIONER HOMIAK: I've got scribbles on mine.
MR. REISCHL: I was trying to keep up with the chairman on being electronic on this one.
CHAIRMAN STRAIN: Well, you've got to get an Apple then. Sorry.
MR. EASTMAN: The advantages of paper.
CHAIRMAN STRAIN: Actually, that's not the one -- it doesn't show enough. The actual survey is
the few pages back from that, Joe. Keep going. It's this one here.
MR. REISCHL: Oh, the resolution. It's attached to the resolution, I believe.
COMMISSIONER HOMIAK: Yeah.
CHAIRMAN STRAIN: Yes. That's it. If you could let him borrow that, Patrick, that would be
great; thank you.
Okay. What I wanted to point out on here -- and, actually, you need to zoom in a little bit on the part
by the waterway. Right there.
Notice on the lower right-hand corner it says, set drill hole on top of concrete seawall, and NAVD
elevation, 3.32. That's the same elevation that the old seawall was at based on the permit application.
Permit application said to cap it, add one foot to it so it would be 4.2, and it also was certified to that.
Now, if you'll look over on the left, second note up, it says, per contractor, pool patio stem wall is at 9.9.
Now, if you take 9.9, subtract the 3.2, you get your 6.6, which is the issue in question today. What
I'm suggesting is it's not 9.9, and then the 3.2 is now 4.2, so the real difference is 5.6; 5.6 is 18 inches over the
four feet that's allowed.
And I guess I've got a question to staff. At that 18 inches, would someone measure from the cap of
the seawall, or they'd have to go next door and measure from the old seawall to determine the height that's
supposed to be used for this deck?
MR. REISCHL: Correct. This is the survey that was submitted. I spoke to Mr. Jones, one of the
attorneys involved, I asked that, and this is what was resubmitted.
CHAIRMAN STRAIN: That's not the question.
MR. BOSI: The question: The new seawall, the seawall constructed at this property would be the
benchmark for where that elevation would start.
CHAIRMAN STRAIN: Okay. That's what I'm getting at. Now, we've heard testimony that
probably -- I can't -- I have to question how it was obtained, that it was measured by the tape measure to be
closer to six -- well, five-and-a-half feet or whatever. I would suggest we maybe have an 18-inch discrepancy
here instead of a 24-inch. But it's just something to consider as we go through this, and maybe the applicant,
by the time they get to the Board of County Commissioners, will have that resolved. I would highly
recommend to them that, rather than wait any longer, they do it right away.
With that, I don't have any more questions at this time, but we do have an opportunity for the
applicant --
COMMISSIONER CHRZANOWSKI: Mark?
CHAIRMAN STRAIN: Yes.
January 19, 2017
Page 28 of 46
COMMISSIONER CHRZANOWSKI: While you're on that survey, I'm fascinated, upper left-hand
corner, in the center line of Tradewinds Avenue, there's a NAVD nail (sic) and a couple in elevation 2.8, and
I thought every road in Collier County was at five minimum. So I -- you know, that just fascinates me.
CHAIRMAN STRAIN: Okay. This is the time when the applicant's representative or the applicant
themselves, someone, you have an opportunity to make a rebuttal if you want to do so. I either need to have
you acknowledge you don't have a rebuttal or you'd like to utilize the time.
MR. SHAPIRO: Sure. Do you mind if I use this?
CHAIRMAN STRAIN: No. Go right ahead.
MR. SHAPIRO: I will be very brief, because I think a lot of the points were, I guess, well brought
out and hit on.
I would just like to bring out, and I think that the counsel here already has, is that this doesn't set any
legal precedent as, of course, I believe most of you know, and I think that's what a lot of the objectors had
issue with is that, you know, maybe this would set a precedent down the line.
But as you know, under case law, these are done on an individual basis, so the ruling today doesn't
set any precedent for future, and hopefully this problem won't happen again.
Again, going by the staff report, I think, you know, there's enough blame to go around. You know, I
am not saying that the petitioner's people, you know, maybe they should have done things more thoroughly,
maybe the county should have reviewed it more thoroughly, but we have what we have here today, and we
have a very unique circumstance because the permit was issued relying on the wrong setbacks, and because
we have what we have here today, we can just make decisions going forward, and I just feel that the
economic hardships of having to tear all that out and put a new pool in over somewhere between 18 inches
and two-and-a-half feet would just be a very large hardship compared to the negligible impact that this has.
So with that, I thank you for your consideration.
CHAIRMAN STRAIN: Thank you.
Okay. When we had some discussion earlier, I think a few of you indicated you had other questions
you wanted to ask before we go -- before we close the public hearing, so now is the time to do that. I can't
remember --
COMMISSIONER SCHMITT: My questions are answered.
CHAIRMAN STRAIN: Everybody else?
COMMISSIONER CHRZANOWSKI: I'm all --
COMMISSIONER SCHMITT: Deliberate.
CHAIRMAN STRAIN: Okay. Then we will close the public hearing, and we will entertain
discussion before we go for motion, if there's discussion. Does anybody have any discussion items they want
to bring up? Joe?
COMMISSIONER SCHMITT: And folks in the audience, I was the community development
administrator from 2010 to 20 -- correction, 2001 to 2009. So during that tenure, of course, I was responsible
for all the zoning in the county as far as all the review and the building department, zoning department, and
other departments under that organization, which there's been some changes since. But I left in 2009. So I
have a clear understanding of the process.
And the only reason I bring up my background, because this is not the first variance in this area. I
could tell you that because we've had similar situations in the past where, because of the code, there is
confusion or there still continues to be confusion which, frankly, when I received the packet, I was -- as I
said, it brought back some tough times in that department. But that said, it is an unfortunate circumstance.
The design professional's responsible. The homeowner hires design professionals who are licensed,
and they're responsible, and I clearly understand that. As an engineer I understand that.
The issue at hand, though, is this is an area for redevelopment. It is the original Naples Park. It's
been an issue for probably 30 years in the county as this area redeveloped, and these -- all these lots
redeveloped primarily because of the location, not as much as Naples Park has, but all these lots are -- were
teardowns and rebuilds.
The issue in this area, Vanderbilt Beach, was a continual problem when I was in the county seven
years ago, as it is, I guess, right now, because we're faced with the same situation of, clearly, 10 pounds of
January 19, 2017
Page 29 of 46
flour in a 5-pound sack, because that's -- most of these homes are maximizing the building envelope that's
allowed.
I do think it's an unfortunate circumstance but, however, from the standpoint of the variance, as far as
I'm concerned, the house exists, the pool exists, and I'm ready to make a motion, if the -- but I'll hold off until
we make some further discussion.
CHAIRMAN STRAIN: I'm glad you said flour.
COMMISSIONER SCHMITT: I did.
COMMISSIONER CHRZANOWSKI: The military term is blivet, b-l-i-v-e-t.
CHAIRMAN STRAIN: Does anybody else have any discussion?
(No response.)
CHAIRMAN STRAIN: Okay. I have one item I'd like to discuss.
Mike or Fred, would you put what I just handed you on the overhead. You nee d to back off a little
bit. Keep going. Keep going. Right there. So we can read the whole thing.
Section 9.04.03 is our criteria for variances. You've heard today that there are eight criteria; there are.
And we've had legal counsel advise us from the opposition side to address their position on those eight
criteria.
Also, a case was referred to us, an old case from a 1982 activity. But we here -- as that attorney,
even the opposition attorney and as staff has opined today, we're here to adhere to the Land Development
Code.
The Land Development Code says this in the beginning of the criteria for variances:
"Findings: Before any variance shall be recommended for approval to the Board of the Zoning
Appeals, the Planning Commission shall consider and be guided by the following standards in making a
determination."
So while we've heard that they're hard and fast rules, you've got to show a hardship, it can't be this
kind of hardship, maybe so, but at the same time we shall consider those and be guided by them. That means
it's not mandatory. And, Mike, if you read this differently as Zoning Director, please let me know. But it's
my understanding that it means what it says, that we're not bound by those eight items, but they are for
consideration.
MR. BOSI: My understanding would be -- the interpretation that you've adopted would be my
understanding; that these are the guidelines and with that emphasis upon the guidelines.
CHAIRMAN STRAIN: Okay. And with that in mind, I have -- I've listened to everything, and I've
certainly tried to do all the research I can to understand how this happened. I can't see the benefit to force
someone to tear down a home such as this. There's been no shown malicious intent in this. It was an -- it was
a human error. It was a mistake made by multiple parties.
To take them to task for this for the cost that it would require for an item that does not set a precedent
I don't think is necessary. Now, if we can show they purposely had misled the county, this was done
intentionally, I'd say then whatever they deserve they deserve in regards to correcting it.
But I have looked at all the records. I have looked at them probably more thoroughly than anybody
in this room, and I can assure you nothing like that came out of any of those records. And they're records that
this panel doesn't even have access to. They're in the county records department. I've pulled all the folders.
There's nothing there that shows malicious intent.
In fact, if anything, they were trying to continually keep up with things they needed to to make sure
their approvals were consistent and reviewed by the county.
So I certainly think that the variance is warranted in this case, whether the variance is
24 -- two-and-a-half feet -- yeah, two-and-a-half feet or 18 inches. Either way, it really doesn't matter. The
pool's there, and it should be approved.
The only thing I would suggest is that a stipulation be added to do make sure that the intent of where
these are allowed at this height, which is everywhere else, basically, but Vanderbilt Beach, that the decorative
cladding or landscaping and a berm or a combination thereof of some nature is there, is put in front or applied
to this wall to soften it, as the other jurisdictions would have -- where they had done so in other parts of the
county.
January 19, 2017
Page 30 of 46
And with that, that's all I've got to say. And if there's nobody else here, we'll close the public hearing
and we'll entertain a motion.
COMMISSIONER SCHMITT: I make a motion to approve.
COMMISSIONER CHRZANOWSKI: I'll second.
CHAIRMAN STRAIN: Will that motion be subject to the stipulation for the --
COMMISSIONER SCHMITT: Subject to the stipulations as discussed.
COMMISSIONER CHRZANOWSKI: Second.
MR. REISCHL: And the staff's stipulation, too.
CHAIRMAN STRAIN: Yes.
COMMISSIONER SCHMITT: Staff stipulation as well noting that, subject to the 50 percent rule,
that anything constructed thereafter would have to require compliance with the existing code.
CHAIRMAN STRAIN: Motion's been made to recommend approval for the variance subject to
staff's recommendation and the one stipulation we just discussed. Any further discussion?
(No response.)
CHAIRMAN STRAIN: All in favor, signify by saying aye.
COMMISSIONER CHRZANOWSKI: Aye.
COMMISSIONER EBERT: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER HOMIAK: Aye.
COMMISSIONER SCHMITT: Aye.
COMMISSIONER DEARBORN: Aye.
CHAIRMAN STRAIN: Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Motion carries 6-0.
Thank you, all, for attending this morning. We appreciate it.
COMMISSIONER CHRZANOWSKI: Mark, could I ask something?
CHAIRMAN STRAIN: Yes.
COMMISSIONER CHRZANOWSKI: I was very impressed by the drone photos, and I would think
that -- seriously, I don't know why the county doesn't do that on a lot of these projects. And I don't know
what it takes to legally do drone photos or buy drones, but it seems like, you know, we're the county; we
ought to have that kind of photography coming to these meetings instead of the petitioner.
COMMISSIONER DEARBORN: It's a great idea. The challenge is the FAA. I can tell you, as a
realtor, they're really cracking down. There's a lot more criteria as to where and when you can fly. I've got to
be honest, I don't know with that drone shot -- and I'm not trying to open up a can of worms here, I've been
told in the past those drones aren't allowed to fly over Vanderbilt Beach either or over that area.
CHAIRMAN STRAIN: I would have to -- I'd have to agree. The last thing I'd --
COMMISSIONER CHRZANOWSKI: A can of worms?
CHAIRMAN STRAIN: -- like to see is the government having the power of drones.
COMMISSIONER SCHMITT: Stay away from that.
COMMISSIONER HOMIAK: No trespassing and no drones.
COMMISSIONER CHRZANOWSKI: We work with Luddites.
CHAIRMAN STRAIN: Oh, Stan.
COMMISSIONER SCHMITT: Stan, stay with Google Earth.
CHAIRMAN STRAIN: ***Okay. That takes us into the next item, the only item remaining on
today's agenda. It's the review of the Land Development Code for both the preservation, I believe, open
space and conservation of golf course areas, and this will be a presentation made by staff, Caroline Cilek. It
will be our second or third time around for some of these, and not the final.
MS. CILEK: Correct. Good morning. Caroline Cilek, for the record.
I would like to go through the amendment that has the most individuals here for public comment
first, if that's okay with --
CHAIRMAN STRAIN: Do you know what that is, or do you want me to ask?
EXHIBIT “C”
RELEVENT Section of the Collier County Land Development Code related
to ERRORS in plans submitted.
From the Collier County Land Development Code
1. CHAPTER 10 APPLICATION, REVIEW, AND DECISION-MAKING PROCEDURES
2. 10.02.00 - APPLICATION REQUIREMENTS
3. 10.02.06 - Requirements for Permits
- Section
Building Permit or Land Alteration Permit.
1.
Building or land alteration permit and certificate of occupancy compliance process.
a.
Zoning action on building or land alteration permits. The County Manager or
his designee shall be responsible for determining whether applications for
building or land alteration permits, as required by the Collier County Building
code or this Code are in accord with the requirements of this Code, and no
building or land alteration permit shall be issued without written approval that
plans submitted conform to applicable zoning regulations, and other land
development regulations. For purposes of this section a land alteration permit
shall mean any written authorization to alter land and for which a building
permit may not be required. Examples include but are not limited to clearing
and excavation permits, site development plan approvals, agricultural clearing
permits, and blasting permits. No building or structure shall be erected,
moved, added to, altered, utilized or allowed to exist and/or no land alteration
shall be permitted without first obtaining the authorization of the required
permit(s), inspections and certificate(s) of occupancy as required by the Collier
County Building Code or this Code and no building or land alteration permit
application shall be approved by the County Manager or his designee for the
erection, moving, addition to, or alteration of any building, structure, or land
except in conformity with the provisions of this Code unless he shall receive a
written order from the Board of Zoning Appeals in the form of an
administrative review of the interpretation, or variances as provided by this
Code, or unless he shall receive a written order from a court or tribunal of
competent jurisdiction.
b.
Application for building or land alteration permit. All applications for building
or land alteration permits shall, in addition to containing the information
required by the building official, be accompanied by all required plans and
drawings drawn to scale, showing the actual shape and dimensions of the lot
to be built upon; the sizes and locations on the lot of buildings already existing,
if any; the size and location on the lot of the building or buildings to be erected,
altered or allowed to exist; the existing use of each building or buildings or
parts thereof; the number of families the building is designed to accommodate;
the location and number of required off-street parking and off-street loading
spaces; approximate location of trees protected by county regulations; changes
in grade, including details of berms; and such other information with regard to
the lot and existing/proposed structures as provided for the enforcement of
this Land development Code. In the case of application for a building or land
alteration permit on property adjacent to the Gulf of Mexico, a survey, certified
by a land surveyor or an engineer licensed in the State of Florida, and not older
than 30 days shall be submitted. If there is a storm event or active erosion on a
specific parcel of land for which a building or land alteration permit is
requested, which the County Manager or his designee determines may effect
the density or other use relationship of the property, a more recent survey may
be required. Where ownership or property lines are in doubt, the County
Manager or his designee may require the submission of a survey, certified by a
land surveyor or engineer licensed in the State of Florida. Property stakes shall
be in place at the commencement of construction.
c.
Construction and use to be as provided in applications; status of permit issued
in error. Building or land alteration permits or certificates of occupancy issued
on the basis of plans and specifications approved by the County Manager or
his designee authorize only the use, arrangement, and construction set forth in
such approved plans and applications, and no other use, arrangement, or
construction. Building use arrangement, or construction different from that
authorized shall be deemed a violation of this Land Development Code.
i.
Statements made by the applicant on the building or land alteration
permit application shall be deemed official statements. Approval of the
application by the County Manager or his designee shall, in no way,
exempt the applicant from strict observance of applicable provisions of
this Land Development Code and all other applicable regulations,
ordinances, codes, and laws.
ii.
A building or land alteration permit issued in error shall not confer any
rights or privileges to the applicant to proceed to or continue with
construction, and the county shall have the power to revoke such permit
until said error is corrected.
d.
Adequate public facilities required. No building or land alteration permit or
certificate of occupancy shall be issued except in accordance with the Collier
County Adequate Public Facilities Ordinance, Ord. No. 90-24 (chapters 3, 6 and
10 of this Code) and Rule 9J-5.0055, F.A.C.
EXHIBIT “D”
Section of FLORDIA BUILDING CODE –
Relevant to Errors in plans submitted
From the Florida Building Code 2014
6. All public swimming pools and public bathing places defined by and regulated under Chapter 514,
Florida Statutes.
[A] 105.3.2 Time limitation of application.
An application for a permit for any proposed work shall be deemed to have been abandoned 180
days after the date of filing, unless such application has been pursued in good faith or a permit has
been issued; except that the building official is authorized to grant one or more extensions of time for
additional periods not exceeding 90 days each. The extension shall be requested in writing and
justifiable cause demonstrated.
105.3.3
An enforcing authority may not issue a building permit for any building construction, erection,
alteration, modification, repair or addition unless the permit either includes on its face or there is
attached to the permit the following statement: “NOTICE: In addition to the requirements of this
permit, there may be additional restrictions applicable to this property that may be found in the public
records of this county, and there may be additional permits required from other governmental entities
such as water management districts, state agencies, or federal agencies.”
105.3.4
A building permit for a single-family residential dwelling must be issued within 30 working days of
application therefor unless unusual circumstances require a longer time for processing the
application or unless the permit application fails to satisfy the Florida Building Code or the enforcing
agency’s laws or ordinances.
105.3.5 Identification of minimum premium policy.
Except as otherwise provided in Chapter 440, Florida Statutes, Workers’ Compensation, every
employer shall, as a condition to receiving a building permit, show proof that it has secured
compensation for its employees as provided in Sections 440.10 and 440.38, Florida Statutes.
105.4.1 Permit intent.
A permit issued shall be construed to be a license to proceed with the work and not as authority to
violate, cancel, alter or set aside any of the provisions of the technical codes, nor shall issuance of a
permit prevent the building official from thereafter requiring a correction of errors in plans,
construction or violations of this code. Every permit issued shall become invalid unless the work
authorized by such permit is commenced within six months after its issuance, or if the work
authorized by such permit is suspended or abandoned for a period of six months after the time the
work is commenced.
[A] 105.6 Denial or revocation.
Whenever a permit required under this section is denied or revoked because the plan, or the
construction, erection, alteration, modification, repair, or demolition of a building, is found by the local
enforcing agency to be not in compliance with the Florida Building Code, the local enforcing agency
shall identify the specific plan or project features that do not comply with the applicable codes,
identify the specific code chapters and sections upon which the finding is based, and provide this
information to the permit applicant. If the local building code administrator or inspector finds that the
plans are not in compliance with the Florida Building Code, the local building code administrator or
inspector shall identify the specific plan features that do not comply with the applicable codes,
identify the specific code chapters and sections upon which the finding is based, and provide this
information to the local enforcing agency. The local enforcing agency shall provide this information to
the permit applicant.
Exhibit “E”
Resolution from the Vanderbilt Beach Residents Assoc. in support of
denying this variance request