Chapter 09 - Variations From Code Requirements CHAPTER 9 VARIATIONS FROM CODE REQUIREMENTS
9.01.00 Generally
9.02.00 Vested Rights and Takings Determinations
9.02.01 Applications for Vested Rights Determinations
9.02.02 Determination of Completeness
9.02.03 Review of Application by County Manager and County Attorney; Determination or Recom-
mendation
9.02.04 Hearing Officer Review and Vested Rights Determination
9.02.05 Criteria for Vested Rights Determinations
9.02.06 Required Notices for Vested Rights Determination Process, Including Public Hearings
9.02.07 Issuance of a Vested Rights Determination by Hearing Officer
9.02.08 Appeal of Hearing Officer's Vested Rights Determination
9.02.09 Expiration of Vested Rights Determinations
9.02.10 Process for Review and Remedy of Taking Claims
9.03.00 Nonconformities
9.03.01 Generally
9.03.02 Requirements for Continuation of Nonconformities
9.03.03 Types of Nonconformities
9.03.04 reserved
9.03.05 reserved
9.03.06 reserved
9.03.07 Nonconformities Created or Increased by Public Acquisition
9.04.00 Variances
9.04.01 Generally
9.04.02 Types of Variances Authorized
9.04.03 Criteria for Variances
9.04.04 Specific Requirements for Minor After-the-Fact Encroachment
9.04.05 Specific Requirements for Variances to Flood Hazard Protection Requirements
9.04.06 Specific Requirements for Variance to the Coastal Construction Setback Line
9.04.07 Reserved
Supp. No. 11 LDC9:1
VARIATIONS FROM CODE REQUIREMENTS
9.01.00 9.02.01 A.2.
9.01.00 GENERALLY
This chapter is intended to provide mechanisms for obtaining relief from the provisions of the LDC where
it is necessary to vary from the requirements of the LDC. Variation from the regulations in the LDC may result
from the following circumstances: development that is vested for the use or design standards that apply to
the property;development that is nonconforming;or development that is granted approval to vary from one
or more regulations by the Board of Zoning Appeals. Each of these circumstances is described in this chapter.
9.02.00 VESTED RIGHTS AND TAKINGS DETERMINATIONS
A. Landowners claiming that certain of their property rights have either: a) vested prior to establishment
of this Code on November 13, 1991, or prior to the effective date of any amendment or revision to this
Code, including the claim to a right to an Adequate Public Facilities Certificate (APFC), or b) been
unlawfully taken, may use the vested rights determination process and takings determination process
under this section, as either or both may be applicable. Both processes are to be administered as
provided for in this section and are intended to ensure landowners are afforded adequate procedural
due process by providing for required notice, public hearing, the right to present and rebut evidence,
create a formal, written record, and an impartial hearing officer, as may be applicable under these
processes.
B. Claims or suits against Collier County, including its board of county commissioners, whether sued
individually or collectively, and any official thereof, which: a)allege vested rights or equitable estoppel,
or b) challenge the denial, revocation, suspension, or any other limitation or restriction set forth in a
development order or development permit, or any other governmental act of Collier County as a
temporary or permanent taking of private property, including claims or suits of an inordinate burden of
private property, cannot be deemed final action or a final order of the County in any court or
quasi-judicial proceeding unless and until the processes provided for by this section have been fully
complied with and exhausted.
C. The provisions of this Code are expressly intended to regulate landowners' rights to develop their
property in the unincorporated areas of the county as may be necessary to protect the public's health
and safety and to promote its general welfare without violating landowners' legally vested rights
obtained in accordance with Florida common law and statutory law, particularly F.S. § 163.3167(8).
(Ord. No. 04-72, § 3.X)
9.02.01 Applications for Vested Rights Determinations
A. Applications for a determination of claimed vested rights must be submitted along with the initially
required application fee in the form established by the County and must be sworn to or comply with
F.S. § 92.525, for declarations made under penalty of perjury. In order to be considered timely, all
applications must be filed within one year of the effective date of this Code, or of any amendment or
revision to the Code, against which the landowner claims to be vested. Failure to timely file such
application within the one-year period will act as a landowner's waiver of the claimed rights and bar
all claims for vested rights or equitable estoppel for the landowner's property. Applications must
include:
1. Name, address, and telephone number of the landowner, and of any authorized agent(s);
2. Street address, legal description, and acreage of the subject property;
Supp. No. 1 LDC9:3
COLLIER COUNTY LAND DEVELOPMENT CODE
9.02.01 A.3. 9.02.03 A.
3. All facts, documents, records, attachments, appendices, exhibits, or other information
reasonably available to the landowner through diligent research which are considered by the
landowner to be relevant and which would tend to establish the criteria for a vested rights
determination set forth in section 9.02.05.The application should include any information the
applicant considers necessary and that would substantiate those facts supporting the claim.
The guide for inclusion of information should be whether the information would constitute
competent, substantial evidence in a quasi-judicial or judicial proceeding;
4. All legal arguments in support of the claims alleged;
5. Any relief or remedies proposed to resolve the claims alleged; and
6. The signature of the landowner or any attorney for the landowner.
Signatures affixed to an application will constitute certification that the person signing has
read the document and that to the best of the person's knowledge it is supported by good
grounds and that it has not been submitted solely for purposes of delay.
B. Applicants may include such information under section 9.02.10. B.3.a.—g., as they consider
necessary to establish their claims.
C. A landowner and any attorney for the landowner has a continuing obligation to amend or correct any
document submitted with the application which is incorrect because of changed circumstances or
which was found to have been incorrect.
(Ord. No. 04-72, § 3.X)
9.02.02 Determination of Completeness ...—
After receipt of a fully paid application for a determination of vested rights, the county manager will
determine if the information submitted with the application is complete. If the application is determined to not
be complete, the county manager will provide notice to the applicant in writing of all deficiencies found within
five (5) days. The county manager will take no further steps to process or review the application until all
deficiencies have been adequately remedied or the county manager is notified by the landowner that no
further information will be provided.
(Ord. No. 04-72, § 3.X)
9.02.03 Review of Application by County Manager and County Attorney; Determination or Recommen-
dation
Completed applications for determinations of vested rights, i.e., those deemed sufficient for review, will be
reviewed by the county manager and the county attorney under the criteria in section 9.02.05.,within forty-five
(45) days. Based on their review, the county manager and the county attorney will thereafter within ten (10)
days either:a)enter into a written stipulated determination of vested rights with the owner,or b)make a written
recommendation to a hearing officer for a determination that the application should be denied, granted or
granted with conditions.
A. If the county manager and the county attorney agree that the application for a determination
of vested rights so clearly demonstrates that the requested relief should be granted or granted
with conditions acceptable to the landowner,then they are authorized to enter into a stipulated
determination of vested rights with the landowner on behalf of the County. The county
manager's and the county attorney's written determination must include: a) their findings of
Supp. No. 1 LDC9:4
VARIATIONS FROM CODE REQUIREMENTS
9.02.03 A. 9.02.04 B.
fact based on the criteria established in section 9.02.05.; b) their conclusions of law for such
criteria; c) their findings of consistency with the growth management plan and the Code, as
applicable;and d)the specific relief to be afforded by the determination,which must be signed
by the County Manager and the County Attorney, as well as the landowner.
B. If the County Manager and the County Attorney do not agree after their review that the
application for determination of vested rights so clearly demonstrates that the requested relief
should be granted or granted with conditions acceptable to the landowner, then they will
prepare a report for consideration by a qualified hearing officer which recommends that the
requested relief should be granted, granted with conditions, or denied. The written recom-
mendation to the hearing officer must include: a) their findings of fact based on the criteria
established in section 9.02.05.; b)their conclusions of law for such criteria;c)their findings of
consistency or inconsistency with the growth management plan, as applicable; and d) the
specific relief to be afforded, if any, in whole or in part, by the determination. The procedures
to be followed for qualification and selection of the hearing officer are those set forth in section
9.02.04. The procedures to be followed for the hearing officer's review of the claim, public
hearing, and issuance of a written determination are set forth below in sections 9.02.04. and
9.02.06.
(Ord. No. 04-72, § 3.X)
9.02.04 Hearing Officer Review and Vested Rights Determination
A. In the event that all of a landowner's claims are not fully resolved by the process under section
9.02.03., the County Manager will solicit for a hearing officer who must meet the following minimum
qualifications: a) be an attorney admitted to practice before the Supreme Court of the State of Florida,
b) have demonstrated knowledge of administrative, environmental, and land use law and procedure;
and c) agree to hold no other appointive or elective county public office or position during the period
retained. A qualified hearing officer selected by the County Manager and County Attorney will be
retained immediately upon the landowner's payment of any additional fees required for a hearing
officer's determination of vested rights.Once retained,the application,written recommendation of the
County Manager and County Attorney,and all supporting documentation,collectively considered to be
the then existing official record of the claim, will be provided to the hearing officer for review. Within
fifteen (15)days of notice of retaining a qualified hearing officer,the claimant must provide the hearing
officer and all other parties a list of the names and addresses of any witnesses which the claimant
intends to present in support of its claim and a summary of the testimony of each witness. In no event,
however, will the requisite public hearing be scheduled or noticed until the list and summary are
properly provided.
B. At any time after thirty(30) days from receipt of the official record, the hearing officer is to conduct a
properly noticed public hearing.The hearing will follow such rules of procedure for quasi-judicial, civil
proceedings as the hearing officer may consider are reasonably required to afford all parties
procedural due process and as follows. The parties entitled to appear before the hearing officer are
the county, the landowner, and those members of the public who have timely notified the County
Manager and hearing officer of their intention to be considered as affected persons under section
9.02.04 C., below. In the event that any affected person's claimed status as a party is challenged by
another party, the hearing officer will determine whether that person is entitled to appear as an
affected person under the traditional notions of standing set forth in Florida jurisprudence.The order
Supp. No. 11 LDC9:4.1
COLLIER COUNTY LAND DEVELOPMENT CODE
9.02.04 B. 9.02.06 A.1.
of presentation before the hearing officer will be: a)the landowner, b) the county, and c) any affected
person(s).Although the public is invited to attend the hearing, members of the general public may not
participate unless testifying as a party witness under one of the three categories above.
C. Affected persons intending to participate as a party in any hearings held as part of the vested rights
determination process must submit written comments and pertinent factual information and data to the
County Manager for inclusion in the official record within fifteen (15) days of the landowner's mailing
of notice to all persons as set forth in section 9.02.06.A.The pertinent factual information and data will
be reviewed and considered by the County Manager and County Attorney, and when applicable, will
be submitted to the hearing officer as an attachment to the County Attorney's and County Manager's
recommendation to the hearing officer and become part of the official record. The names of affected
persons intending to appear as a party witness, along with a written summary of their testimony, must
be submitted to the hearing officer no later than ten (10) days prior to the advertised date of the
hearing officer's public hearing.
(Ord. No. 04-72, § 3.X)
9.02.05 Criteria for Vested Rights Determinations
A. This section is intended to establish criteria for vested rights determinations that strictly adhere to,and
implement, existing Florida statutory and case law as they relate to the doctrine of vested rights and
equitable estoppel. Each determination is to be made on a case-by-case basis in light of these criteria
and the specific factual and legal analysis of that claim. Landowner's claims should not be afforded the
relief or remedy sought unless the landowner demonstrates by substantial competent evidence that
it's entitled to complete it's development without regard to the otherwise applicable provision(s)of this
Code based on either: a) meeting the provisions of F.S. § 163.3167(8); or b) that: 1) upon some act
(such as enacting the challenged provision of this Code) or omission of the county, 2)the landowner
relying in good faith, (3) has made such a substantial change in position or has incurred such
extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights
acquired to apply the challenged provision.
B. The provisions of Code of Laws § 106-46 (i) Criteria for Vested Rights, (2) & (3), may be used as an
additional guide for consideration of the second and third criteria in A., above.
(Ord. No. 04-72, § 3.X)
9.02.06 Required Notices for Vested Rights Determination Process, Including Public Hearings
A. Within 15 days of the date of receipt by the county of a completed application for a vested rights
determination, the landowner must provide notice of the submission of the application by:
1. Prominently posting on the property for which the vested rights determination is sought a sign
advising of the substance of the claim of vested rights. The sign shall be posted at least 15
days prior to the date of the public hearing by the planning commission.The sign to be posted
shall contain substantially the following format.
a. Public Hearing for Vested Rights Determination:
To Permit: (sufficiently clear to describe the project)
Date:
Supp. No. 11 LDC9:4.2
VARIATIONS FROM CODE REQUIREMENTS
9.02.06 A.1. 9.02.06 C.
Time:
To be held in the Commissioners Meeting Room, Administration Building, County
Government Center, 3299 Tamiami Trail East, Naples, Florida
2. The area of the signs shall be as follows:
a. For properties less than one acre in size,the sign shall measure at least one and one
half square feet in area.
b. For properties 1 acre or more in size, the sign shall measure at least 32 square feet
in area.
3. In the case of signs located on properties less than one acre in size,the sign shall be erected
by the County Manager or designee in full view of the public on each street side of the subject
property. Where the property for which approval is sought is landlocked or for some other
reason the signs cannot be posted directly on the subject property, then the sign or signs
shall be erected along the nearest street right-of-way, with an attached notation indicating
generally the distance and direction to the subject property.
4. In the case of signs located on properties one acre or more in size, the applicant shall be
responsible for erecting the required sign(s).A sign shall be erected in full view of the public
on each street upon which the subject property has frontage. Where the subject property is
landlocked, or for some other reason the signs cannot be posted directly on the subject
property, then the sign or signs shall be erected along the nearest street right-of-way, with
an attached notation indicating generally the distance and direction to the subject property.
There shall be at least one sign on each external boundary which fronts upon a street,
however, in the case of external boundaries along a street with greater frontages than 1,320
linear feet, signs shall be placed equidistant from one another with a maximum spacing of
1,000 linear feet,except that in no case shall the number of signs along the exterior boundary
fronting on a street exceed 4 signs. The applicant shall provide evidence to the County
Manager or designee that the sign(s)were erected by furnishing photographs of the sign(s)
showing the date of their erection at least ten days prior to the scheduled public hearing by
the planning commission,whichever has jurisdiction.The signs shall remain in place until the
date of either the following occurrences: 1) Final action is taken by the board of county
commissioners or 2) The receipt of written notification by the County Manager or designee
from the applicant requesting to withdraw the petition or requesting its indefinite continuance.
5. Mailing notice to all property owners within 300 feet of the property lines of the subject
property. The mailed notice must briefly state the nature of the claim and must be made via
certified mail, return receipt requested, sent at the landowner's expense.
B. Public notice for vested rights determination hearings held pursuant to section 9.02.04. or section
9.02.08. must be provided by publication at least one time in a newspaper of general circulation at
least fifteen (15) days in advance of any public hearing stating the time, place, purpose of such
hearing, including a brief statement of the nature of the claim.
C. For those claims not resolved under section 9.02.03.,the landowner must additionally provide the type
of mailed notice described in A.,above to all persons who have notified the County Manager that they
should be considered as an affected person at least twenty (20) days prior to the hearing officer's
public hearing.
Supp. No. 11 LDC9:4.3
COLLIER COUNTY LAND DEVELOPMENT CODE
9.02.06 D. 9.02.09__
D. For those claims not resolved under section 9.02.08,the appealing party must additionally:a)provide
the type of mailed notice described in A., above to all other parties at least fifteen (15) days prior to
the public hearing, and b) publish the notice for the public hearing required under B., above.
(Ord. No. 04-72, § 3.X; Ord. No. 13-56, § 3.FF)
9.02.07 Issuance of a Vested Rights Determination by Hearing Officer
Within fifteen (15) days after the completion of the hearing officer's public hearing, the hearing officer will
render a determination denying, granting, or granting with conditions, all vested rights claimed by the
landowner.The determination must be based upon the hearing officer's review and consideration of the official
record which will include the application for determination of vested rights,the recommendation of the County
Manager and the County Attorney, and the evidence and testimony presented at the public hearing by all
parties.The determination must be in writing and specifically set forth enumerated: a) findings of fact, and b)
conclusions of law for each criterion of section 9.02.05., as applicable to each claim.The determination must
also state the specific relief or remedy afforded the landowner, if any, and detail any conditions which the
landowner must comply with to obtain such relief.
(Ord. No. 04-72, § 3.X)
9.02.08 Appeal of Hearing Officer's Vested Rights Determination
Within 30 days after the hearing officer's written determination of vested rights being rendered, either the
county or the landowner may appeal the determination to the board of county commissioners.Any additional
fee for a landowner-initiated appeal must accompany the appeal.The board of county commissioners may: a)
affirm the hearing officer's determination of vested rights, with or without modifications or conditions, or b)
reject the hearing officer's determination, except that the board may not modify the determination or impose
conditions, or reject the hearing officer's determination unless the board expressly finds that one or more of
the hearing officer's findings of fact or conclusions of law is not supported by competent substantial evidence
in the official record, or that the hearing officer's determination otherwise specifically failed to properly apply
one or more of the criterion in section 9.02.05. Because the law in the area of vested rights and equitable
estoppel is constantly changing in both substance and interpretation, the board should be guided by advice
from the office of the County Attorney regarding interpretations of appropriate considerations in its
deliberations.
(Ord. No. 04-72, § 3.X)
9.02.09 Expiration of Vested Rights Determinations
Any relief granted by a vested rights determination will be presumed abandoned and expire if not utilized
for its proper purpose within two (2) years from the date it was granted. Thus, all determinations of vested
rights which are granted, with or without conditions, expire and become null and void two (2) years from the
date finally issued, i.e., the last of either: a) the latest date signed as a stipulated agreement, b) the date
rendered by a hearing officer,or c)otherwise finally determined following any appeal;unless: 1)any conditions
imposed are complied with and construction authorized by the determination is commenced pursuant to an
approved final development order or permit, and 2)construction continues in good faith under then applicable
regulations for development.The two(2)year time limitation to commence and continue construction will only
be stayed for any time period during which construction is prohibited, deferred, or delayed by the county due
to inadequate public facilities, as otherwise provided for by this Code.
(Ord. No. 04-72, § 3.X)
Supp. No. 11 LDC9:4.4
VARIATIONS FROM CODE REQUIREMENTS
9.02.10 9.02.10 B.3.
9.02.10 Process for Review and Remedy of Taking Claims
A. Scope. This section applies to:
1. A landowner's claim which would otherwise arise in a court of competent jurisdiction as a
taking of property without just compensation under any law applicable to the county and that
arises from:
a. The denial of property or development rights sought as part of a development permit
or development order, or
b. The application of any other provision of the county's comprehensive plan, its
implementing land development regulations as stated in this Code, or other ordi-
nances.
2. Persons denied a claimed remedy sought as part of a vested rights determination under
sections 9.02.00.-9.02.09., of this Code; and
3. Any aggrieved or adversely affected party meeting the standard for"standing"defined in F.S.
§ 163.3215(2), and alleging that the grant or issuance to another person of a development
order or development permit by the county constitutes a taking of his property.
4. Notwithstanding the provisions set forth above, this section does not apply to takings claims
arising as part of a condemnation or eminent domain action to which the county is,or may be,
a party.
B. Administrative procedures for filing and documentation of takings claims.
1. All takings claims must be filed with the County Manager and be accompanied by such fee as
may be required.
2. Any person filing a takings claim must affirmatively demonstrate the validity of the claim
alleged by submitting a sworn statement setting forth the facts upon which the takings claim
is based. The sworn statement should include any information the applicant considers
necessary. As such, a statement may contain attachments, appendices or exhibits that
substantiate those facts supporting the claim.The guide for inclusion of information should be
whether the information would constitute competent, substantial evidence in a quasi-judicial
or judicial proceeding.
3. In addition to a demonstration of a potential taking claim,the applicant's evidence should also
provide that information necessary to fashion a remedy, should a potential taking claim be
found to exist. As part of a typical claim package, the sworn statement required by this
Supp. No. 11 LDC9:4.4.1
VARIATIONS FROM CODE REQUIREMENTS
9.02.10 B.3. 9.02.10 BA.
subsection should support the claim for a remedy by including any additional affidavits,copies
of drawings, contracts, recordings, reports, letters, appraisals,or any other form of documen-
tation or information that may apply, including, but not limited to:
a. The transcript or record of any previous hearing where the claim is alleged to have
arisen,
b. Evidence of the expenditure of funds for land, the acquisition of which provides the
basis of the taking claim,
c. Evidence of expenditures of funds for planning, engineering, environmental, and
other consultants for site plan preparation, site improvement or other preparation, or
construction,
d. Evidence of expenditures for construction of actual buildings in accordance with an
existing or prior development order or development permit issued by the county,
e. Any relevant donations or dedications of real property or any other property interest
made to the county for the following purposes:
i. Roads or other transportation or public utility facilities,
ii. Access (ingress/egress) or rights-of-way,
iii. Drainage easements,
iv. Parks or recreation/open space,
v. Retention/detention areas,
vi. Preservation or conservation areas, or
vii. Any other purpose consistent with the provision of services for any element
of the county's comprehensive plan; which are either on- or off-site with
respect to the property involved in the claim.
f. Evidence of costs of construction of any roads, sidewalks, stormwater detention/
retention or drainage facilities, sewer or water facilities, parks, etc., which would be
either on- or off-site, and part of a plan permitting development on the subject
property, or
g. Other development orders or development permits issued by the county with respect
to the property involved in the takings claim,and any related federal,state or regional
permits.
4. As part of a sworn statement, the claimant is required to provide a list of the names and
addresses of any witnesses which the claimant will present in support of the claim and a
summary of the testimony of each witness.
Supp.No. 6, Rev. LDC9:4.5
COLLIER COUNTY LAND DEVELOPMENT CODE
9.02.10 B.S. 9.02.10 C.2.
5. Additionally, the claimant should consider submitting as part of its sworn statement informa-
_
tion which:
a. Demonstrates that the claimant has acted in good faith and without knowledge that
changes to applicable ordinances, resolutions, or regulations might effect his
development expectations. In establishing "good faith,"the claimant should consider
submitting information which affirmatively states that the claimant:
Has not waived, abandoned, or substantially deviated from related prior
county development approvals;
ii. Has not,by act or failure to act,consented or assented to changes in related
prior county development approvals; and
iii. Has, at all times relevant, conformed with the applicable laws, rules, and
regulations of the state and the county.
b. If applicable, details the specific governmental act, ordinance, resolution, regulation
or comprehensive plan provision that the claimant believes gave rise to the takings
claim.
6. The signature of the claimant, or any attorney for the claimant, upon any document submitted
as part of a sworn statement will constitute certification that the person signing has read the
document and that to the best of the person's knowledge it is supported by good grounds and
that it has not been submitted solely for purposes of delay. Further, the claimant and any
attorney for the claimant will have a continuing obligation to amend or correct any document
submitted which is incorrect because of changed circumstances or was found to have been
incorrect.
7. If the board of county commissioners makes a determination and finding that the sworn
statement submitted as part of a taking claim is:
a. Based on facts that the claimant or any attorney for the claimant knew or should have
known was not correct or true; or
b. Frivolous or filed solely for the purposes of delay;
then the board of county commissioners, in addition to the penalties set forth in section
10.07.00. A.2.e., may pursue any remedy or impose any penalty provided for by law or
ordinance.
C. Review, hearing and standards for takings claims.
1. Within five working days of filing a sworn statement(and any accompanying information) as
part of a takings claim, the county manager will determine whether the statement received is
complete. If the statement is deficient, then the claimant will be notified, in writing, of the
deficiencies.
2. Once a statement is complete, or the claimant has informed the county manager that no
further information is forthcoming, the county manager will timely review the application,
provide requisite public notice consistent with section 9.02.06 B, and schedule a properly
noticed public hearing before the board of county commissioners on the takings claim.
Supp.No.6, Rev. LDC9:4.6
VARIATIONS FROM CODE REQUIREMENTS
9.02.1 Q C,3. 9.02,10 C.5.
3. At the scheduled public hearing, sworn testimony and relevant evidence which meets the
criteria of subsection B. above should be offered into the record to support the claimant's
position. The county manager and staff, and county attorney personnel may offer testimony
and evidence, or opinions as may be relevant to the hearing.
4. No later than 30 days after the board of county commissioners closes the public hearing,the
board will make and report a conclusive, final decision based upon the record presented.
Nothing in this subsection will prevent the board from deciding to continue the hearing to a
time-, date-, and place-certain to give staff the opportunity to prepare alternatives, in
consultation with the applicant, or to give staff or the applicant the opportunity to prepare
responses to questions which the board may have regarding information presented at the
hearing.
5. Because the law in the area of takings is constantly changing in both substance and
interpretation,the board of county commissioners should be guided by advice from the office
of the county attorney regarding interpretations of appropriate considerations in its delibera-
tions. In evaluating whether a valid taking claim is presented by the record, and what the
measure of relief to be provided to the claimant should be, if any,the following factors will be
taken into consideration:
a. Whether and to what degree the challenged regulation or combination of regulations
has resulted in any physical invasion of the claimant's property by the county or
others;
b. Whether the challenged regulation, or combination of regulations, has resulted in a
denial of all beneficial use of the claimant's property by the county and, if so,whether
the logically antecedent inquiry into the nature of the landowner's estate shows that
the prescribed use interests were not part of his title to begin with;
c. Whether and to what degree the claimant's expectations of use were investment-
backed;
d. Whether and to what degree the claimant's expectations of use were reasonable in
light of the following circumstances as they may apply:
i. The logically antecedent inquiry into the nature of the landowner's estate
shows that the prescribed use interests were not part of his title to begin with;
ii. The existing land use and zoning classification of the subject and nearby
properties, as may be relevant;
iii. The development history of the subject property and nearby properties; and
iv. The suitability of the subject property for the intended or challenged
development or use.
e. Whether and to what degree the intended or challenged development or use has or
would cause any diminution in value of the subject properties, or any relevant
properties arising from section 9.02.10 A.3.;
Supp.No. 6, Rev. LDC9:4.7
• COLLIER COUNTY LAND DEVELOPMENT CODE
9.02.10 C.5. _--- 9.03.01 C.
f. Whether and to what degree any such diminution of property values has promoted
the public health, safety, morals, aesthetics, or general welfare, and was consistent
with the county's comprehensive plan; and
g. To what extent the public would gain from the intended or challenged development or
use compared to any resulting hardship upon the claimant alone.
6. Any relief to be provided a claimant will be limited to the minimum necessary to provide a
reasonable, beneficial use of the subject property and may be in the form of alternative uses
of additional development intensity which may be severed and transferred, or other such
non-monetary relief as is deemed appropriate by the board of county commissioners. Any
relief granted will be presumed abandoned and expire if not utilized for its proper purpose
within one year from the date it was granted. Subsequent applications under this section may
review the expired decision for possible reinstatement, with or without modification as
deemed necessary under then existing conditions.
D. Appeal of takings claim. Any claimant aggrieved by the final decision of the board of county
commissioners may seek judicial review of the board's decision by timely filing an action in a court of
competent jurisdiction.
(Ord. No. 04-72, § 3.X)
9.03.00 NONCONFORMITIES
9.03.01 Generally
A. Intent. Within the zoning districts established by the LDC or amendments that may later be adopted,
there may exist lots,structures, uses of land,water and structures,and characteristics of use which
were lawful before the LOC was adopted or amended, but which would be prohibited, regulated, or
restricted under the terms of LDC or future amendments. It is the intent of this section to permit these
nonconformities to continue until they are voluntarily renovated or removed as required by the LDC,
but not to encourage their survival. It is further the intent of the LDC that the nonconformities shall
not be enlarged upon, expanded, intensified, or extended, nor be used as grounds for adding other
structures or uses prohibited elsewhere in the same district.
B. Declaration. Nonconforming uses are declared by this section to be incompatible with permitted
uses in the districts involved.A nonconforming use of a structure,a nonconforming use of land or
water, or a nonconforming use of structure, land or water in combination shall not be extended or
enlarged after the effective date of the LDC or relevant amendment thereto by attachment on a
structure or premises of additional signs intended to be seen from off the premises,or by the addition
of other uses of a nature which would be prohibited generally in the district involved, except as
provided for within section 9.03.03 B.4.
C. Vested projects. To avoid undue hardship, nothing in the LDC shall be deemed to require a change
in the plans, construction,or designated use of a building or property on which a building permit had
been applied for prior to the effective date of adoption of relevant amendment of the LDC. In addition,
nothing in the LDC shall be deemed to require a change in the plans, construction, or designated use
of any property for which a development plan was lawfully required and approved prior to the
effective date of adoption of relevant amendment of the LDC, provided that such plan shall expire two
(2) years from the date of said approval, or one (1) year from the date of adoption of the LDC,
whichever shall first occur, if no actual construction has been commenced; and thereafter, all
Supp.No. 6, Rev. LDC9:4.8
VARIATIONS FROM CODE REQUIREMENTS
9.03.01 C. 9.03.02 A.
development shall be in accordance with the zoning regulations then in effect. Any such approved
plat or plan may be amended by approval of the BCC, provided the degree of nonconformity with the
LDC shall not be increased.
D. Casual, temporary, or illegal use. The casual, temporary, or illegal use of land or structures, or land
and structures in combination, shall not be sufficient to establish the existence of a nonconforming
use or to create rights in the continuance of such use.
E. Uses under conditional use provisions not nonconforming uses. All uses lawfully existing on the
effective date of the LDC or any subsequent amendment to this Code, which are permitted as a
conditional use in a district under the terms of the LDC or any subsequent amendment to this Code,
shall not be deemed a nonconforming use in such district, but shall without further action be deemed
to have a conditional use permit.
F. Change to conforming use requires future conformity with district regulations. Where a structure, or
structure and premises in combination, in or on which a nonconforming use is replaced by a
permitted use shall thereafter conform to the regulations for the district in which the structure is
located, and [sic] the nonconforming use shall not thereafter be resumed nor shall any other
nonconforming use be permitted.
G. Nonconformities not involving the use of a principal structure. Nonconformities not involving the
use of a principal structure, including, but not limited to, open storage, building supplies, vehicles,
mobile homes, trailers, equipment and machinery storage, junkyard, commercial animal yards and
the like, shall be discontinued within one (1) year of the effective date of the LDC or relevant
amendment of the LDC.
H. Safety of nonconformities.
1. If a nonconforming structure or portion of a structure, or any structure containing a
nonconforming use becomes physically unsafe or unlawful due to lack of repairs or
maintenance, and is declared by the duly authorized official of Collier County to be unsafe or
unlawful by reason of physical condition, it shall not thereafter be restored, repaired,or rebuilt
except in conformity with the regulations of the district in which it is located.
2. If a nonconforming structure or portion of a structure, or any structure containing a
nonconforming use, becomes physically unsafe or unlawful for reasons other this lack of
repairs or maintenance, nothing contained herein shall be deemed to prevent the strength-
ening or restoring to a safe condition of such building or part thereof declared to be unsafe
by the authorized official of Collier County charged with the public safety; provided, however,
that where such unsafeness or unlawfulness is the result of damage from destruction, the
percentage of damage limitations set out in section 9.03.02 F.3., as the case may be, shall
apply.
(Ord. No. 04-72, § 3.Y)
9.03.02 Requirements for Continuation of Nonconformities
Where, at the effective date of adoption or relevant amendment of the LDC, lawful use of lands or waters
exists which would not be permitted under the LDC,the use may be continued,so long as it remains otherwise
lawful, provided:
A. Enlargement, increase, intensification, alteration. No such nonconforming use shall be enlarged,
intensified, increased, or extended to occupy a greater area of land, structure, or water than was
occupied at the effective date of adoption or relevant amendment of the LDC, except a single-family,
duplex, or mobile home use as provided for within section 9.03.03 B.4.
Supp. No. 12 LDC9:5
COLLIER COUNTY LAND DEVELOPMENT CODE
9.03.02 B. 9.03.02 F.3.
�-- B. Extension of use in building manifestly designed for such use. Any nonconforming use may be
extended throughout any parts of a building which were manifestly arranged or designed for such use
at the effective date of adoption or relevant amendment of the LDC.Any nonconforming use which
occupied a portion of a building not originally designed or intended for such use shall not be extended
to any other part of the building. No nonconforming use shall be extended to occupy any land
outside the building, nor any additional building on the same lot or parcel, not used for such
nonconforming use at the effective date of adoption or relevant amendment of the LDC.
C. Change in tenancy or ownership.There may be a change in tenancy, ownership, or management of
a nonconforming use provided there is no change in the nature or character of such nonconforming
use.
D. Change in use. If no structural alterations are made, any nonconforming use of a structure, or of a
structure and premises in combination may be changed to another nonconforming use of the same
character, or to a more restricted nonconforming use, provided the board of zoning appeals, upon
application to the County Manager or designee, shall find after public notice and hearing that the
proposed use is equally or more appropriate to the district than the existing nonconforming use and
that the relation of the structure to surrounding properties is such that adverse effect on occupants
and neighboring properties will not be greater than if the existing nonconforming use is continued.
In permitting such change, the board of zoning appeals may require appropriate conditions and
safeguards in accordance with the intent and purpose of the LDC.
E. Movement. No such nonconforming use shall be moved in whole or in part to any portion of the lot
or parcel other than that occupied by such use at the effective date of adoption or relevant
amendment of the LDC.
F. Discontinuance or destruction.
1. If any such nonconforming use ceases for any reason (except where governmental action
impedes access to the premises) for a period of more than 1 year, any subsequent use of
land shall conform to the regulations specified by the LDC for the district in which such land
is located.
2. Notwithstanding the above definitions of discontinuance relative to a nonconforming use of
land or water or structure,where the use of land,water or a structure has ceased for a period
of more than 1 year, and where such property or use is deficient in the required amount of
paved, striped parking, including parking and access to the structure for the disabled; water
management facilities; landscaping;and other site improvements as required in Chapter Four
of the LDC, prior to the recommencement of any use of land, water or structure, said
deficiencies as may apply shall be remedied, to the greatest extent possible given the
physical constraints on the property, via the appropriate administrative processes found in
Chapter Ten, or as otherwise required by the LDC.
3. When nonconforming use status applies to a major structure or structures, or to a major
structure or structures and premises in combination, removal or destruction of the
structure or structure shall eliminate the nonconforming status of the land. "Destruction"
of the structure for purposes of this subsection is hereby defined as damage to the extent of
more than fifty (50) percent of the replacement cost at the time of the destruction. Upon
removal or destruction as set out in this section,the use of land and structures shall therefore
conform to the regulations for the district in which such land is located.
Supp. No. 12 LDC9:6
VARIATIONS FROM CODE REQUIREMENTS
9.03.02 G. 9.03.03 A.1.
G. Repairs and maintenance. On any nonconforming structure or portion of a structure and on any
structure containing a nonconforming use, work may be done in any period of twelve (12)
consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures,
wiring, or plumbing to an extent not exceeding twenty (20) percent of the current assessed valuation
of the structure (or of the nonconforming portion of the structure if a nonconforming portion of a
structure is involved), provided that the cubic content of the structure existing at the date it becomes
nonconforming shall not be increased except subject further to the exception provided at section
9.03.03 B., herein.
H. Subdivision or structural additions. No land in nonconforming use shall be subdivided, nor shall any
structures be added on such land except for the purposes and in a manner conforming to the
regulations for the district in which such land is located; provided, however, that subdivision may be
made which does not increase the degree of nonconformity of the use.
(Ord. No. 12-38, § 3.BB)
9.03.03 Types of Nonconformities
A. Nonconforming lots of record. In any district, any permitted or permissible structure may be
erected, expanded, or altered on any lot of record at the effective date of adoption or relevant
amendment to the LDC.
1. Except as provided herein, the minimum yard requirements in any residential district except
RMF-6 shall be as for the most similar district to which such lot of record most closely
conforms in area, width and permitted use, except that when possible the greater of any yard
requirement in either district shall apply, and except when specifically provided for in the
district regulations.
a. Rural Agricultural (A) zoning district:
i. Front Yard: 40 feet.
ii. Side Yard: 10 percent of lot width, not to exceed 20 feet on each side.
iii. Rear Yard: 30 feet.
b. Estates (E) zoning district: See LDC section 2.03.01 for setbacks.
c. RMF-12:
i. Single-family dwellings revert to RSF-6 standards.
ii. Duplex and multi-family dwellings revert to RMF-6 standards.
d. Mobile Home (MH) zoning district:
Front Yard: 10 feet.
ii. Side Yard:5 feet or zero (0)foot.Where zero is used, the opposite yard must
maintain a minimum of 10 feet.
iii. Rear Yard: 8 feet.
Supp.No.24 LDC9:7
COLLIER COUNTY LAND DEVELOPMENT CODE
9.03.03 A.1. 9.03.03 B.
iv. Waterfront Yard (Side or Rear): 10 feet.
2. The minimum side yard requirement in any commercial or industrial district shall be equal to
the height of the proposed principal structure, or the minimum side yard requirement in the
district, whichever is lesser.
3. Nonconforming through lots, which are nonconforming due to inadequate lot depth, may
have a reduced front yard along the local road frontage.The reduction shall be computed at
the rate of fifteen (15) percent of the depth of the lot, as measured from edge of the
right-of-way. Front yards along the local road shall be developed with structures having an
average front yard of not less than six (6) feet; no building thereafter erected shall project
beyond the average line.The reduced front yard setback shall be prohibited along a collector
or arterial roadway.
4. When two or more adjacent legal nonconforming lots of record are either combined under
a single folio or parcel number for taxing purposes by the property appraiser's office, or
combined as a single parcel by recording the previously separate non-conforming lots into
one legal description, neither or both of these actions will prohibit the owner or future owners
from subsequently splitting the parcel into two or more folio or parcel numbers for tax
purposes, or severing the parcels into their former legal descriptions as legal nonconform-
ing lots of record according to the original legal description(s) at the time the property was
recognized as legal nonconforming. Prior to any two or more adjacent legal non-
conforming lots being combined for development, a legally binding document must be
recorded to reflect a single parcel with a unified legal description.Once such a document has
been recorded to amend the legal description and a development permit has been approved
by the County for development as that unified parcel, the property cannot be split or
subdivided except as may then be allowed by this Code.
5. Nonconforming Corner Lots. Corner lots of record which existed prior to the date of
adoption of Collier County Ordinance No. 82-2 [January 5, 1982] and which do not meet
minimum lot width or area requirements established in the LDC, shall be required to provide
only one full depth front yard.The full depth front yard requirement shall apply to the front
yard which has the shorter or shortest street frontage. The setback requirement for the
remaining front yard(s) may be reduced to 50 percent of the full front yard setback
requirement for that district, exclusive of any road right-of-way or road right-of-way
easement. For setbacks for Estates (E) zoning district, see Section 2.03.01.
6. RMF-6 Districts. A two family or duplex dwelling unit may be constructed on any legal
non-conforming lot of record when the minimum lot area is 9,750 square feet or greater and
an agreement for deed or deed was recorded prior to January 5, 1982 to establish the lot.
A single family dwelling unit may be constructed on any legal non-conforming lot of record
provided an agreement for deed or deed was recorded prior to January 5, 1982 to establish
the lot.
B. Nonconforming structures.Where a structure lawfully exists at the effective date of the adoption of
this ordinance or relevant amendment that could not be built under the LDC by reason of restrictions
Supp.No.24 LDC9:8
VARIATIONS FROM CODE REQUIREMENTS
9.03.03 B. 9.03.03 B.S.
on lot area, lot coverage, height, yards, location on the lot, or requirements other than use
concerning the structure, such structure may be continued so long as it remains otherwise lawful,
subject to the following provisions:
1. No such nonconforming structure may be enlarged or altered in a way which increases its
nonconformity, but any structure or portion thereof may be altered to decrease its
nonconformity;provided,however,that the alteration,expansion,or replacement of nonconform-
ing single-family dwellings, duplexes or mobile homes shall be permitted in accordance
with section 9.03.03 B.4.
2. Should such nonconforming structure or nonconforming portion of a structure be
destroyed by any means to an extent of more than fifty (50) percent of its actual replacement
cost at time of destruction, as determined by a cost estimate submitted to the site
development review director, it shall not be reconstructed except in conformity with provisions
of the LDC.
a. Docks and boathouses are not subject to the provisions of Section (B)(2) above.
docks and boathouses must be reconstructed to conform to the Code only if the
reconstruction of the dock or boathouse will expand or alter the original nonconform-
ing facility with regard to deck area, protrusion, setbacks, or the addition of any
covered structure, regardless of the percentage of destruction or repairs performed.
The determination of legal nonconforming status will be established by presentation
of a signed, sealed survey, a copy of the Property Appraiser's record, or other dated
photography or documentation showing that the facility existed in its present location
and configuration prior to 1990. Any expansion of the facility, no matter how
insignificant will void legal nonconforming status and require strict compliance to the
Code.
3. Should such structure be moved for any reason for any distance whatever, other than as a
result of governmental action, it shall thereafter conform to the regulations for the district in
which it is located after it is moved.
4. Nonconforming residential structures, which for the purpose of this section shall mean
detached single-family dwellings, duplexes or mobile homes in existence at the effective
date of this zoning Code or its relevant amendment and in continuous residential use
thereafter, may be altered,expanded,or replaced upon recommendation of the Collier County
Planning Commission and approval of the Board of Zoning Appeals by resolution.
5. Notwithstanding the foregoing restrictions as to reconstruction, any residential structure or
structures in any residential zone district may be rebuilt after destruction to the prior extent,
height and density of units per acre regardless of the percentage of destruction, subject to
compliance with the applicable building code requirements in effect at the time of
redevelopment. In the event of such rebuilding, all setbacks and other applicable district
requirements shall be met unless a variance therefore is obtained from the Board of Zoning
Appeals. For the purpose of this section, a hotel, motel, or boatel shall be considered to be
a residential structure.Since the size and nature of the alteration, expansion or replacement
of such nonconforming structures may vary widely,a site plan, and if applicable,preliminary
building plans indicating the proposed alteration, expansion or replacement shall be
Supp.No.24 LDC9:9
COLLIER COUNTY LAND DEVELOPMENT CODE
9.03.03 B.5. 9.03.03 C.4.
presented with each petition. Prior to granting such alteration, expansion or replacement of a
nonconforming single-family dwelling, duplex or mobile home,the Planning Commission
and the BCC shall consider and base its approval on the following standards and criteria:
a. The alteration, expansion, or replacement will not increase the density of the parcel
or lot on which the nonconforming single-family dwelling, duplex, or mobile
home is located;
b. The alteration, expansion, or replacement will not exceed the building height
requirements of the district most closely associated with the subject nonconforming
use;
c. The alteration, expansion, or replacement will not further encroach upon any
nonconforming setback;
d. The alteration, expansion, or replacement will not decrease or further decrease the
existing parking areas for the structure;
e. The alteration, expansion, or replacement will not damage the character or quality of
the neighborhood in which it is located or hinder the proper future development of
the surrounding properties; and
f. Such alteration, expansion, or replacement will not present a threat to the health,
safety, or welfare of the community or its residents.
C. Requirements for improvements or additions to nonconforming mobile homes.
1. Improvements or additions to nonconforming mobile homes containing conforming uses, in
the A agriculture district only, shall be permitted if the addition or improvement complies fully
with the setback and other applicable regulations.
2. Issuance and reissuance of building permits when multiple mobile homes are located on a
single parcel of land:Where specific zoning districts permit mobile home development and
said lands have been substantially developed prior to the effective date of the LDC with
multiple mobile homes under singular ownership without an approved site development
plan, as required by Chapter Ten of the LDC, no further building permits for the placement or
replacement of mobile homes may be obtained except as defined below.
3. Prior to issuance of any building permit for replacement of a mobile home, the property
owner or authorized agent shall provide the County Manager or designee, or his designee,
with three copies of a scaled drawing of the subject parcel which indicates:
a. Proof of building permit issuance for structure being replaced.
b. The location of the structure to be replaced and its relationship to adjacent mobile
homes and parcel boundaries.
4. Prior to issuance of a building permit for any additional mobile home(s), the applicant or
authorized agent shall obtain a site development plan, consistent with Chapter 10 of the
LDC.As part of the SDP application, building permit numbers of all existing mobile homes
shall be submitted.
Supp.No.24 LDC9:10
VARIATIONS FROM CODE REQUIREMENTS
9.03.03 C.5. 9.03.07 C.2.
5. In no case shall the issuance or reissuance of building permits cause the density of the
subject parcel to exceed that provided in the density rating system of the GMP or the
Immokalee future land use map, except as may be provided in section 9.03.03 B.4. of the
LDC.
D. Nonconforming signs. See LDC section 5.06.09 for Nonconforming Sign Requirements.
(Ord. No. 09-43, § 3.B; Ord. No. 14-33, § 3.Y; Ord. No. 21-25, § 3.D)
9.03.07 Nonconformities Created or Increased by Public Acquisition
A. Applicability.
1. For purposes of this section, "acquisition" means any method of acquiring private property for
public use, including dedication, condemnation, or purchase.
2. This section applies to the acquisition for present or planned public use by the following party
or parties: (i) Collier County; (ii) another governmental entity; (iii) public or private utility
companies providing public service; and/or (iv) a private party or parties under agreement
with Collier County or other government entity.
B. Lot Area
1. Unimproved Lots: If an unimproved lot has sufficient area for the subdivision of three (3) or
fewer conforming lots, and part of the lot is acquired for public purpose, then it may be
subdivided after the acquisition to the same number of lots that could have been achieved
prior to the acquisition. Each newly created lot must contain at least eighty(80) percent of the
required minimum lot area.
2. Improved or Unimproved Lots. No conforming lot otherwise qualifying for a lot split or lot line
adjustment pursuant to the provisions of this Code may be denied approval solely on the
grounds that the resulting lot or lots would be less than the required minimum area for such
lot(s) in the applicable zoning district as a result of acquisition,from Feb. 14,2006, if the newly
created lots contain at least eighty (80) percent of the required minimum lot area.
C. Other Nonconformities:
1. Required yards on improved lots, lot coverage on improved lots, and lot dimensions rendered
nonconforming or more legally nonconforming as a result of a portion being acquired for public
use, may be reduced by the same dimension, area, or amount involved in the dedication,
condemnation, purchase, or similar method of acquisition; and
2. Any structure that is not located within the acquisition area, but is made nonconforming in
terms of a required yard or setback as a result of the acquisition, need not be relocated,except
as follows:
a. The County Manager or designee determines that leaving the structure or a site
related condition in its pre-acquisition location may create an unsafe condition, in
which case the structure shall be relocated the minimum distance necessary to
address the public safety concern or the site related condition shall be modified to a
safe condition; and
Supp.No.24 LDC9:10.1
COLLIER COUNTY LAND DEVELOPMENT CODE
9.03.07 C.2. 9.03.07 D.
b. A front yard of at least ten (10) feet in depth shall be maintained for all building
structures.
c. The resulting degree of nonconformity of the area and dimensions of a lot and the
required yards with this Code's then current requirements are considered lawful
unless or until the remaining lot or lots in combination are: (i) recreated or replatted,
combining the subject lot or lots with an adjacent lot or lots resulting in a unified plan
of development; or (ii) improved such that the value of the proposed improvements
are equal to or greater than 50 percent of the total replacement value of the structures
and site improvements on the lots or lot combinations existing at the time of
improvement. The replacement value shall be calculated by a Florida licensed
property appraiser.In the occurrence of either condition (i) or(ii) above, the lot or lots
must comply with the requirements then established by this Code or as may be set
forth within a PUD if applicable.Otherwise, any legal and conforming site modification
or change of use shall not trigger a requirement to bring the nonconformity created by
the acquisition into conformance with the then required provisions.
3. Any other site related nonconformity or site related condition resulting from the acquisition,
including those rendered more nonconforming, shall be considered legally nonconforming,
including stormwater management facilities, landscaping, open space, native vegetation,
conservation areas, buffers and preserves, on- or off-site parking, vehicle stacking, throat
lengths, or non-structural architectural design standards.All such nonconformities are allowed
to remain legally nonconforming and in their existing location(s) and/or configuration(s),
provided they continue to function adequately to meet their intended purpose, except where it
is determined by the County Manager or designee that such newly created or increased
nonconformity or site related condition constitutes an unsafe condition. In those cases where
it is determined that the newly created or increased nonconformity or related condition
constitutes an unsafe condition, the nonconformity or site related condition shall be relocated
or modified in accordance with paragraph 2.a. above, as applicable. In any case, such
nonconformities are subject to the limitations set forth in paragraph 2.c., above.
D. Post Take Plan. This section addresses the development, review and approval of post-take cure
plans for remainder properties to mitigate and/or eliminate the negative and potentially costly impacts
resulting from the taking of a property for public purposes. In such cases, it may be determined to be
in the public interest to allow some deviations from applicable LDC or PUD provisions, or Conditional
Supp.No.24 LDC9:10.2
VARIATIONS FROM CODE REQUIREMENTS
9.03.07 D. 9.03.07 D.4.
Use requirements, in order to accommodate site modifications and/or enhancements, designed to
cure, remedy, mitigate, minimize or resolve otherwise negative site impacts resultant from public
acquisition.
1. The Administrative Code shall establish the submittal requirements for a Post Take Plan and
the applicant shall provide the following:
a. The boundary or special purpose survey shall be signed and sealed by a professional
surveyor and mapper licensed to practice in the State of Florida.
b. The appropriate fee as established by the Board of County Commissioners.
2. The property owner or the County may request the following deviations from the LDC, PUD
or Conditional Use requirements, as may be applicable:
a. Landscape Buffers may be reduced from the required width or depth; but shall not
result in a buffer of less than 5 feet in width or depth. Landscape buffers which have
been completely eliminated by the acquisition may be replaced beyond the acquisi-
tion area; but shall not result in a buffer of less than 5 feet in width or depth. All
required plant materials and irrigation requirements shall remain within the reduced
buffer area or shall be relocated or installed as a condition of the Post Take Plan
approval.
b. Water management facilities, including retention, detention and conveyance may
occupy up to 75 percent of a landscape buffer width,if there is a minimum remaining
planting area of at least 5 feet.
c. Required native vegetation,preserve,or open space requirements may be reduced
by an amount not to exceed 10 percent.
3. Deviations other than those set forth in paragraphs D.2.a.through D.2.c.above, or exceeding
the minimums or maximums established therein, may also be approved, subject to the
following procedures:
a. In addition to the requirements for submittal of a Post Take Plan established in the
Administrative Code within 60 days of the date of submittal of the Post Take Plan to
Collier County the applicant shall also notify property owners in accordance with
notice procedures established in LDC section 10.03.06 S, as may be applicable.
b. The notice shall: (1) list the requested deviations other than those set forth in
paragraph 2, above, or exceeding the minimums and maximums established in that
subsection; (2) provide a brief narrative justification for such deviation(s); and (3)
provide a copy of the Post Take Plan (in 11 by 17 inch or 8.5 by 11 inch format).
4. Approval Criteria and Process.
a. If no written objection is received within 30 days of the date of mailing of the notice,
the Post Take Plan is deemed approved.
b. If an abutting property owner who receives a notice submits a written objection to
Collier County within 30 days of the date of mailing of notice, the matter shall be
Supp. No. 11 LDC9:11
COLLIER COUNTY LAND DEVELOPMENT CODE
9.03.07 D.4. 9.04.01 A.
scheduled for public hearing before the Collier County Planning Commission
(CCPC). In such cases, the Board of County Commissioners delegates the authority
to review the Post Take Plan to the CCPC and includes this review as part of the
CCPC powers and duties under the Collier County Code of Laws and Ordinances
section 2-1156 -2-1164. Public notice for the hearing shall comply with LDC section
10.03.05 C, as may be applicable, and shall specifically note the location of the
property and the requested deviations. The CCPC, in considering whether to
approve, approve with conditions, or deny the proposed Post Take Plan, shall
consider the following:
Whether the deviation is the minimum amount necessary to mitigate for the
impacts of the acquisition, while still protecting the public health, safety, and
welfare; and
ii. Whether the County or property owner has or will mitigate for impacts from
the requested deviation(s) on neighboring properties by maintaining or
enhancing compatibility through various measures, including but not limited
to the installation of additional landscape plantings or the installation of
fences or walls; and
iii. Whether the requested deviations are consistent with and further applicable
policies of the GMP and the requirements of the LDC, PUD, or Conditional
Use, as may be applicable.
5. Within 30 days of approval, approval with conditions, or denial of a Post Take Plan by the
CCPC, the applicant, affected property owner, or abutting property owner may appeal the
decision to the Board of Zoning Appeals. For the purposes of this section, an aggrieved or
adversely affected party is defined as any person or group of persons which will suffer an
adverse effect to any interest protected or furthered by the Collier County Growth Manage-
ment Plan, Land Development Code,or building code(s). If an appeal is filed by an abutting
property owner, and said appeal is successful, Collier County shall reimburse said appellant
for the appeal application fee and any associated advertising costs.
E. This section (9.03.07) applies to acquisitions which occurred prior to the adoption of this ordinance if
the purchase or dedication of the property has not closed, or the condemnation proceeding relating
to the property acquired has exhausted all available appeals.
(Ord. No. 08-63, § 3.GG; Ord. No. 13-56, § 3.GG)
9.04.00 VARIANCES
9.04.01 Generally
A. Purpose. In specific cases, variance from the terms of the LDC may be granted where said variance
will not be contrary to the public interest, safety, or welfare and where owing to special conditions
peculiar to the property, a diminution of a regulation is found to have no measurable impact on the
public interest, safety or welfare; or a literal enforcement of the LDC would result in unnecessary and
undue hardship, or practical difficulty to the owner of the property and would otherwise deny the
property owner a level of utilization of his/her property that is consistent with the development pattern
in the neighborhood and clearly has no adverse effect on the community at large or neighboring
property owners.
Supp. No. 11 LDC9:12
VARIATIONS FROM CODE REQUIREMENTS
9.04.01 B. 9.04.03 H.
B. Historic Places. Variances may be issued for the reconstruction, rehabilitation or restoration of
structures listed on the National Register of Historic Places or the State Inventory of Historic Places,
without regard to the procedures set forth in the remainder of this section.
C. For specific procedures associated with Variances, please see section 10.09.00 of the LDC.
(Ord. No. 05-27, § 3.QQ)
9.04.02 Types of Variances Authorized
A variance is authorized for any dimensional development standard, including the following: height, area,
and size of structure; height of fence; size of yards and open spaces; dimensional aspects of landscaping
and buffering requirements;size, height, maximum number of,and minimum setback for signs;and minimum
requirements for off-street parking facilities.
A. Variances for signs. The variance procedure for signs is provided in section 5.06.00, the
Collier County Sign Code.
(Ord. No.06-07, § 3.Q; Ord. No. 09-43, § 3.B; Ord. No. 12-38, § 3.CC)
9.04.03 Criteria for Variances
Findings. Before any variance shall be recommended for approval to the board of zoning appeals, the
planning commission shall consider and be guided by the following standards in making a determination:
A. There are special conditions and circumstances existing which are peculiar to the location,
size, and characteristics of the land, structure, or building involved.
B. 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.
C. A literal interpretation of the provisions of the LDC work unnecessary and undue hardship on
the applicant or create practical difficulties on the applicant.
D. 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.
E. Granting the variance requested will not confer on the petitioner any special privilege that is
denied by these zoning regulations to other lands, buildings, or structures in the same
zoning district.
F. 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.
G. 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.
H. Granting the variance will be consistent with the GMP.
(Ord. No. 05-27, § 3.QQ)
Supp.No.21 LDC9:13
COLLIER COUNTY LAND DEVELOPMENT CODE
9.04.04 9.04.04 C.2.
9.04.04 Specific Requirements for Minor After-the-Fact Encroachment
Minor after-the-fact yard encroachments for structures, including principal and accessory structures,
may be approved administratively by the County Manager or designee. Exceptions to required yards as
provided for within LDC section 4.02.01 D.shall not be used in the calculations of existing yard encroachments.
A. For both residential and non-residential structures the County Manager or designee may administratively
approve minor after-the-fact yard encroachments of up to five (5) percent of the required yard, not to
exceed a maximum of six (6) inches when a building permit has been issued and a certificate of
occupancy has not been granted.The encroachment applies to the yard requirement in effect as of the
date the building permit was issued.
B. For both residential and non-residential structures,the County Manager or designee may administratively
approve minor after-the-fact yard encroachments of up to ten percent of the required yard with a
maximum of two feet when a building permit and certificate of occupancy has been granted. The
encroachment applies to the yard requirement in effect as of the date the building permit was issued.
1. Exception.Residential structures shall be deemed compliant with the applicable development
standards and no variance shall be required when the following additional conditions apply:
a. The building permit and certificate of occupancy were approved in compliance with
the required setbacks in effect at that time;
b. The encroachment does not exceed three inches into the required yard;
c. The only portion of the structure encroaching into the required yard is the exterior wall
treatment; and
d. The required structure to structure separation, as identified in LDC section 4.02.03, is
satisfied.
C. For property supporting a single-family home, two-family home, duplex, mobile home or modular
home, the County Manager or designee may administratively approve encroachments of up to
twenty-five (25) percent of the required yard in effect as of the date of the building permit when one of
the following conditions exists:
1. In the presence of mitigating circumstances, where the encroachment does not result from
error or action on the part of the property owner and a building permit has been issued.
2. Where no building permit record can be produced and the following criteria are met:
a. An after-the-fact building permit for the structure, or portion of the structure, is
issued prior to the approval of the administrative variance. The administrative
variance will only be approved once all inspections have been completed. The
certificate of occupancy shall be placed on hold until the administrative variance is
approved.
b. The encroaching structure, or portion of the structure, was constructed prior to the
purchase of the subject property by the current owner.
Supp.No.21 LDC9:14
VARIATIONS FROM CODE REQUIREMENTS
9.04.04 C.2. 9.04.05 A.3.
c. Evidence is presented showing that the encroaching structure, or portion of the
structure, was constructed at least two (2) years prior to the date of application for
the administrative variance.This evidence may be in the form of a survey, property
card, or dated aerial photograph clearly showing the encroachment.
d. The encroaching structure is either an addition of living area to a principal
structure, or an accessory structure of at least two hundred (200) square feet in
area.
e. The encroachment presents no safety hazard and has no adverse affect on the public
welfare.
D. Where a structure was lawfully permitted within a residential zoning district under a previous code,
and where said structure is considered nonconforming under the current Land Development Code,
due to changes in the required yards, the County Manager or designee may administratively approve
a variance for an amount equal to or less than the existing yard encroachment.
E. Under no circumstances shall any administrative variance be approved which would allow a reduction
of the separation between structures to less than ten (10) feet.
F. Administrative variances approved pursuant to the above do not run with the land in perpetuity and
remain subject to the provisions of this section regarding nonconforming structures.
(Ord. No. 06-63, § 3.00; Ord. No. 16-27, § 3.U; Ord. No. 18-18, § 3.N; Ord. No.20-16, § 3.J)
9.04.05 Specific Requirements for Variances to Flood Hazard Protection Requirements
A. General requirements.
1. Variances shall only be issued upon a determination that the variance is the minimum
necessary, considering the flood hazard, to afford relief.
2. Variances shall only be issued upon:
a. A showing of good and sufficient cause.
b. A determination that failure to grant the variance would result in exceptional hardship
to the applicant.
c. A determination that the granting of a variance will not result in increased flood
heights, additional threats to public safety, extraordinary public expense, create
nuisances, cause fraud on or victimization of the public, or conflict with existing local
laws or ordinances.
3. In passing upon a variance, the Board of Zoning Appeals shall consider all technical
evaluations, all relevant factors, standards specified in other sections of the LDC; and the
following criteria:
a. The danger that materials may be swept onto other lands to the injury of others;
b. The danger to life and property due to flooding or erosion damage;
Supp.No.21 LDC9:15
COLLIER COUNTY LAND DEVELOPMENT CODE
9.04.05 A.3. 9.04.06 B.
c. The susceptibility of the proposed facility and its contents to flood damage and the
effect of such damage on the individual owner;
d. The importance of the services provided by the proposed facility to the community;
e. The necessity to the facility of a waterfront location, where applicable;
f. The availability of alternative locations, not subject to flooding or erosion damage,for
the proposed use;
g. The compatibility of the proposed use with existing and anticipated development.
h. The relationship of the proposed use to the GMP and flood plain management
program for the area;
The safety of access to the property in times of flood for ordinary and emergency
vehicles;
j. The expected heights, velocity, duration, rate of rise, and sediment transport of the
flood waters and the effects of wave action, if applicable, expected at the site;
k. The costs of providing governmental services during and after flood conditions,
including maintenance and repair of public utilities and facilities such as sewer, gas,
electrical, water systems, streets, and bridges, and;
I. Variances shall not be issued within any designated floodway if any increase in flood
levels during the base flood discharge would result.
m. Variances may be issued by a community for new construction and substantial
improvements and for other development necessary for the conduct of a function-
ally dependent use provided that the criteria of (a) through (I) of this section are met.
n. Generally, variances may be issued for new construction and substantial improve-
ments to be erected on a lot of one-half (1/2) acre or less in size contiguous to and
surrounded by lots with existing structures constructed below the base flood level,
providing items (a) through (I) have been fully considered.
9.04.06 Specific Requirements for Variance to the Coastal Construction Setback Line
A. The coastal construction setback line shall be that coastal construction setback line established by
the DEP of the State of Florida pursuant to F.S.§ 161.053 and recorded in Coastal setback line Book
1, pages 1 through 12 inclusive, recorded October 31, 1974, as Clerk's Instrument No.365665 of the
public records of Collier County, Florida.
B. Setback lines established under this LDC shall be reviewed upon petition of affected riparian upland
owners.The BCC of Collier County shall decide,after due public notice and hearing,whether a change
in the setback line is justified, and shall notify the petitioner in writing.The present setback lines are
presumed to be correct, and no change in setback lines are presumed to be correct, and no change
in setback lines shall be made except upon an affirmative showing by petitioner that any construction
line established hereunder is a minimum of 150 feet landward of the mean high-water line or
Supp.No.21 LDC9:16
VARIATIONS FROM CODE REQUIREMENTS
9.04.06 B. 9.04.06 C.
seventy-five(75)feet landward of the vegetation line whichever is greater;and that considering ground
elevations in relation to historical storm and hurricane tides, predicted maximum wave uprush, beach
and offshore ground contours, the vegetation line, erosion trends, the dune or bluff line, if any exist,
and existing upland development, that the general public health and welfare are preserved, upland
properties protected, and beach and sand dune erosion controlled.
C. It shall be unlawful for any person, firm, corporation, or agency, public or private, to construct,
reconstruct, or change existing structures, make any excavation, remove any beach material or
otherwise alter existing ground elevations, drive any vehicle on, over or across any sand dune, or
damage or cause to be damaged any sand dune, or the vegetation growing thereon and/or seaward
of said dune, seaward of the coastal construction setback line, except as hereinafter provided.
Supp.No.24 LDC9:16.1
VARIATIONS FROM CODE REQUIREMENTS
9.04.06 D. 9.04.06 G.2.
D. If in the immediate contiguous or adjacent area a"number of existing structures" have established a
reasonably continuous and uniform construction line closer to the line of mean high water than the line
as herein established, and if said existing structures have not been unduly affected by erosion, a
proposed structure may be permitted along such line if such proposed structure is also approved by
the BCC.
E. The BCC may authorize the construction of pipelines or piers extending outward from the shoreline,
unless it determines that the construction of such projects would cause erosion of the beach in the area
of such structures.
F. Reserved.
G. Procedures for obtaining variance.
1. A written petition requesting a variance from the established setback line shall be filed with the
BCC or their designee.The petition shall set forth:
a. A description of petitioner's property to include the information requested on a current
Collier County request for a coastal construction setback line variance form;
b. A description of the established setback line and the line which petitioner wishes to be
varied;
c. The justification upon which the petitioner relies for the granting of the variance, to
include compliance with the Collier County growth management plan, conservation
and coastal management element.
2. Notice and public hearing for coastal construction setback line variances.An application for
coastal construction setback line (CCSL)variance shall be considered by the BCC pursuant
to the following public notice and hearing requirements.
a. The applicant shall post a sign at least 45 days prior to the date of the public hearing
by the BCC.The sign shall contain substantially the following language and the sign
copy shall utilize the total area of the sign:
PUBLIC HEARING REQUESTING
CCSL VARIANCE APPROVAL(both to contain the following information:)
TO PERMIT: (Sufficiently clear to describe the type of variance requested).
DATE:
TIME:
TO BE HELD IN BOARD OF COUNTY COMMISSIONERS MEETING ROOM, COL-
LIER COUNTY GOVERNMENT CENTER.
b. The area of a property sign shall be as follows:
i. For a property less than one acre in size,the sign shall measure at least one
and one-half square feet in area.
Supp.No.15 LDC9:17
COLLIER COUNTY LAND DEVELOPMENT CODE
9.04.06 G.2. 9.04.06 G.4.
For a property one acre or more in size, the sign shall measure at least 32
square feet in area.
c. In the case of a sign located on a property less than one acre in size, such sign shall
be erected by the County Manager or his designee in full view of the public on each
street side of the subject property and on the side of the property visible from the
beach.Where the property for which approval is sought is landlocked or for some other
reason a sign cannot be posted directly on the subject property,then the sign shall be
erected along the nearest street right-of-way, with an attached notation indicating
generally the distance and direction to the subject property.
d. In the case of sign(s)located on a property one acre or more in size,the applicant shall
be responsible for erecting the required sign(s).The sign(s) shall be erected in full
view of the public on each street upon which the subject property has frontage and on
the side of the property visible from the beach. Where the subject property is
landlocked, or for some other reason the sign(s) cannot be posted directly on the
property,then the sign(s)shall be erected along the nearest street right-of-way,with
an attached notation indicating generally the distance and direction to the subject
property.There shall be at least one sign on each external boundary which fronts upon
a street, however, in the case of external boundaries along a street with greater
frontages than 1,320 linear feet, signs shall be placed equidistant from one another
with a maximum spacing of 1,000 linear feet, except that in no case shall the number
of signs along an exterior boundary fronting on a street exceed four signs. The
applicant shall provide evidence to the County Manager or designee that the sign(s)
were erected by furnishing photographs of the sign(s) showing the date of their
erection at least ten days prior to the scheduled public hearing by the BCC.The sign(s)
shall remain in place until the date of either of the following occurrences:
1. Final action is taken by the BCC;or
2. The receipt of a written request by the County Manager or designee from the
applicant to either withdraw or continue the petition indefinitely.
e. Notice of the time and place of the public hearing by the BCC shall be advertised in a
newspaper of general circulation in the county at least one time and at least 15 days
prior to the public hearing. Where applicable, the notice shall clearly describe the
proposed variance.The advertisement shall also include a location map that identifies
the approximate geographic location of the subject property.
f. The BCC shall hold one advertised public hearing on the proposed variance and may,
upon the conclusion of the hearing, immediately adopt the resolution approving the
variance
3. The BCC shall notify petitioner in writing of its decision within 15 days of the public hearing.
4. Any person aggrieved by a decision of the BCC granting or denying a variance may apply to the
circuit court of the circuit in which the property is located for judicial relief within 30 days after
rendition of the decision by the BCC.Review in the circuit court shall be by petition for a writ of
certiorari and shall be governed by the Florida Appellate Rules.
Supp.No.15 LDC9:18
VARIATIONS FROM CODE REQUIREMENTS
9.04.06 H. 9.04.07
H. Exemptions. Exemptions shall be reviewed administratively for compliance with applicable county
codes, and shall not be heard by the BCC. Exemptions to this section 9.04.06 shall include:
1. The removal of any plant defined as exotic vegetation by county code.
2. Any modification, maintenance,or repair,to any existing structure within limits of the existing
foundation or footprint,which does not require, involve,or include any additions to,or repair or
modifications of, the existing foundation of that structure,except those modifications required
by code, excluding additions or enclosure added, constructed, or installed below the first
dwelling floor or lowest deck of the existing structure.
3. Any structures,that:1)do not constitute fixed structure(s),2)do not require a building permit,
3) weigh less than 100 pounds, and 4) upon review by the County Manager or his designee
does not present an actual or potential threat to the beach and the dune system and adjacent
properties are exempt from the variance requirements of this section.This exemption shall not
be effective during sea turtle nesting season (May 1—October 31) unless the structures are
removed daily from the beach prior to 9:30 p.m. and are not moved onto, or placed on, the
beach before completion of monitoring conducted by personnel with prior experience and
training in nest surveys procedures and possessing a valid Fish and Wildlife Conservation
Commission Marine Turtle Permit(daily sea turtle monitoring),or unless the beach furniture is
being actively used or attended during the period of time from 9:30 pm until the next day's
monitoring.Exemptions allowed under this provision are not intended to authorize any violation
of F.S.§370.12, or any of the provisions of the Endangered Species Act of 1973, as it may be
amended.
(Ord.No.05-27, §3.QQ)
9.04.07 Reserved
Editor's note—Ord.No.13-56,§3.HH,adopted September 24,2013, repealed§9.04.07,which pertained to
specific requirements for waiver of automobile service station distance requirements.See Land Development
Ordinance Disposition Table for complete derivation.
L
Supp.No.15 LDC9:19