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Ex-parte - Solis 02/28/2017 Ex parte Disclosure - Commissioner Solis COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA 02/28/2017 BOARD OF ZONING APPEALS 8.A. 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]. NO DISCLOSURE FOR THIS ITEM SEE FILE ®Meetings ❑Correspondence ®e-mails ❑Calls SUMMARY AGENDA 17.E. Recommendation to approve Petition VAC-PL20160003293, to disclaim, renounce and vacate the County and the public interest in a portion of the 10-foot drainage easement and vacate a portion of the 10-foot utility easement located along the rear border of Lot 50, The Lodgings of Wyndemere, Section One, as recorded in Plat Book 13, Page 8 of the public records of Collier County, Florida, located in Section 19, Township 49 South, Range 26 East, Collier County, Florida. XQ NO DISCLOSURE FOR THIS ITEM SEE FILE UMeetings Correspondence ❑e-mails ❑Calls January 27 2 O 7Th January February 2017 Surt Surto TuWe Th Fr Sa o TuWe Th Fr Sa 1 2 3 4 5 6 7 1 2 3 4 Friday 8 9 10 11 12 13 14 5 6 7 8 9 10 11 15 16 17 18 19 20 21 12 13 14 15 16 17 18 22 23 24 25 26 27 28 19 20 21 22 23 24 25 29 30 31 26 27 28 FRIDAY Notes 27 7 AM 8 9 Introductory Meeting with Commissioner Solis and Naples Airport Exec Director,Ch Chris Rozansky's Office, Naples Airport Authority, 160 Aviation Drive N., Naples, FL(Phone Robin E. Menard 10 Meeting with Patrick Neale;County Commission Office,3299 Tamiam.> 11 Reconsideration memo 12 PM 1 Andy Unavailable 2 3 4 5 6 SolisAndrew 1 2/27/2017 5:44 PM GoodnerAngela From: pneale@patrickneale.com on behalf of Patrick Neale <pneale@patrickneale.com> Sent: Tuesday, January 24, 2017 5:32 PM To: SolisAndrew Cc: karen@patrickneale.com; khall@patrickneale.com; GoodnerAngela Subject: Registered: RE: Request REGISTERED EMAIL lail CERTIFIED DELIVERY, CONTENT & TIME This is a Registered Email® message from Patrick Neale. Andy Thanks. I will advise my client and get back to Angela. I am tentatively booked Friday morning,but if that clears up,I will call to set a time to meet at the Government Center.If not,I will give you a call. All the best, Pat Patrick H.Neale Patrick Neale&Associates Attorney at Law Primary Office: 5470 Bryson Court, Suite 103 Naples,FL 34109 Marco Island Office: (By Appointment Only) 950 North Collier Blvd. Suite 400 Marco Island,FL 34145 Phone:239 642-1485 Fax:239 642-1487 Mobile:239 404-7930 Primary Email:pneale@patrickneale.com Secondary Email address for service: email-service@patrickneale.com Please visit our website: www.patrickneale.com This e-mail is intended only for the individual(s)or entity(s)named within the message. This e-mail might contain legally privileged and confidential information.If you properly received this e-mail as a client or retained expert,please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party,that action could constitute a waiver of the attorney-client privilege.If the reader of this message is not the intended recipient,or the agent responsible to deliver it to the intended recipient,you are hereby notified that any review,dissemination,distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521.If this communication was received in error we apologize for the intrusion.Please notify us by reply e-mail and delete the original message without reading same.Nothing in this e-mail message shall,in and of itself,create an attorney-client relationship with the sender. We are a federally designated Debt Relief Agency under the United States Bankruptcy Laws.We assist people with finding solutions to their debt problems,including assisting them with the filing of petitions for relief under the United States Bankruptcy Code. Representation:No representation by our Firm,or by any member of our Firm,shall be deemed to commence by any correspondence other than a mutually signed engagement and representation letter. Evidentiary Privilege:To the extent that this message is being sent to settle a claim or dispute, all evidentiary limitations on its use and admissibility are hereby expressly made applicable to the message and its contents. Disclaimer under Circular 230:Any statements regarding tax matters made herein,including any attachments,are not formal tax opinions by this firm,cannot be relied upon or used by any person to avoid tax penalties,and are not intended to be used or referred to in any marketing or promotional materials. 1 Original Message From: SolisAndrew[mailto:AndrewSolis@colliergov.net] Sent: Tuesday,January 24,2017 5:10 PM To:Patrick Neale<pneale@patrickneale.com> Cc:Karen Klukiewicz<karen@patrickneale.com>;Judi Menard<khall@patrickneale.com>;GoodnerAngela <AngelaGoodner@colliergov.net> Subject:Re: Request Pat, My door is always open. I will be at the Gov't Center Friday morning if that works for you. Otherwise,I can talk on the phone or meet you at my Mercato or Orange Blossom offices Thursday afternoon.As far as meeting with you and your client,I can meet any time on the 2nd at the Mercato or in the afternoon on the 3rd at the Gov't Center. Unfortunately,I am out of town the following week. Please let my assistant Angela Goodner know what works best for you and your client. Be well. Andy Solis,Esq. Commissioner,District 2 Collier County Board of Commissioners District Office:239.252.8602 mobile:239.315.6080 fax:239.252.6946 Under Florida Law,e-mail addresses are public records.If you do not want your e-mail address released in response to a public records request,do not send electronic mail to this entity. Instead,contact this office by telephone or in writing. From:pneale@patrickneale.com<pneale@patrickneale.com>on behalf of Patrick Neale<pneale@patrickneale.com> Sent:Tuesday,January 24,2017 4:58 PM To: SolisAndrew Cc:karen@patrickneale.com;khall@patrickneale.com Subject:Registered:Request [***RPost Registered Email***] This is a Registered Email®message from Patrick Neale. Andy I would like to speak with you at your convenience about a matter that will be coming before the BCC in February.It is a variance petition in Vanderbilt Beach and I am representing those opposing the petition.My primary client will be in town from February 2-12 and would like to meet during that time period.I would also like to speak to you about this issue prior to our meeting.Please let me know the best time to call and whether you want me to call at the County or your law office. Thanks, Pat Patrick H.Neale Patrick Neale&Associates Attorney at Law Primary Office: 5470 Bryson Court, Suite 103 Naples,FL 34109 Marco Island Office: (By Appointment Only) 950 North Collier Blvd. Suite 400 2 Marco Island,FL 34145 Phone:239 642-1485 Fax:239 642-1487 Mobile:239 404-7930 Primary Email:pneale@patrickneale.com<mailto:pnealeApatrickneale.com> Secondary Email address for service: email-service@patrickneale.com<mailto:email-service@patrickneale.com> Please visit our website:www.patrickneale.com<http://www.patrickneale.com/> This e-mail is intended only for the individual(s)or entity(s)named within the message.This e-mail might contain legally privileged and confidential information.If you properly received this e-mail as a client or retained expert,please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party,that action could constitute a waiver of the attorney-client privilege.If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient,you are hereby notified that any review,dissemination,distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521.If this communication was received in error we apologize for the intrusion.Please notify us by reply e-mail and delete the original message without reading same.Nothing in this e-mail message shall,in and of itself,create an attorney-client relationship with the sender. We are a federally designated Debt Relief Agency under the United States Bankruptcy Laws.We assist people with fmding solutions to their debt problems,including assisting them with the filing of petitions for relief under the United States Bankruptcy Code. Representation:No representation by our Finn,or by any member of our Finn, shall be deemed to commence by any correspondence other than a mutually signed engagement and representation letter. Evidentiary Privilege: To the extent that this message is being sent to settle a claim or dispute,all evidentiary limitations on its use and admissibility are hereby expressly made applicable to the message and its contents. Disclaimer under Circular 230:Any statements regarding tax matters made herein,including any attachments,are not formal tax opinions by this firm,cannot be relied upon or used by any person to avoid tax penalties,and are not intended to be used or referred to in any marketing or promotional materials. Click here<http://rmail.rpost.com/RMAIL/autologin.aspx?rr=56C75864>to send a Registered Email®message to anyone. <http://> [http://open.rpost.net/456091 B 81 D8ECE91 F5C4B98C68C030BA9F771 DD 1- 1 5004C9DDFC9C4D4D2177B49609D23 8EFD5CCCE90/rpost.gif] Click here to send a Registered Email®message to anyone. Po red by RPc*-7:- II jl 3 GoodnerAngela From: pneale@patrickneale.com on behalf of Patrick Neale <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 Attachments: 20170112 marks It reischl.pdf; Collier County Commissioners Zoning Hearing Presentation - 2-26-2017 --FINAL (1).pdf r REGISTERED EMAIL Ma ,� 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 Marco Island Office: (By Appointment Only) 950 North Collier Blvd. Suite 400 Marco Island, FL 34145 Phone: 239 642-1485 Fax: 239 642-1487 Mobile: 239 404-7930 Primary Email: pnealepatrickneale.com Secondary Email address for service: email-service(a�patrickneale.com Please visit our website: www.patrickneale.com This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender. We are a federally designated Debt Relief Agency under the United States Bankruptcy Laws. We assist people with finding solutions to their debt problems, including assisting them with the filing of petitions for relief under the United States Bankruptcy Code. Representation: No representation by our Firm, or by any member of our Firm, shall be deemed to commence by any correspondence other than a mutually signed engagement and representation letter. Evidentiary Privilege: To the extent that this message is being sent to settle a claim or dispute, all evidentiary limitations on its use and admissibility are hereby expressly made applicable to the message and its contents. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials. Click here to send a Registered Email®message to anyone. 2 T 239.642.1485 PATRICK, Naples F 239.642.14875470 Brymon Court Suite 103 E info@patricknade.com CINEALE Naples,Florida 34109 wwwpatrickneak.com ,: ASSOCIATES A4aiiing Patrick H. Neale MarroIsland(by appointment): P.O.Baa 9440 950 North Collier Blvd.Suite 400 Naples,Florida 34101-9440 Attorney at Law Marco Island,Florida 34145 January 10,2017 Mr.Fred Reischl Senior Planner Collier County Growth Management Department Zoning Division 2800 Horseshoe Drive Naples,FL RE:Petition VA-PL20160001181 —342 Trade Winds Avenue Dear Fred: 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. 1981) 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 1 r Mr.Fred Reischl January 11. 2017 Page 2 of 4 requirements of the Building Code and Land 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 Board 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. E 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 injurious 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. 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. Opposing Position: The approval of the Variance will not impact the GMP. 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. r 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. eale Cc: Clients PHN/Ps