HEX Final Decision 2021-47HEX NO. 2021-47
HEARING EXAMINER DECISION
DATE OF HEARING.
September 23, 2021
PETITION.
PETITION NO. VA-PL20200001329 - 992 Spanish Moss Trail - Request for a variance from
Table I, Section III, Ord. 02-71, as amended, the Pelican Marsh Planned Unit Development,
to reduce the required Rear Yard Accessory Setback of 10 feet to 0 feet, to allow a pool deck
and screen enclosure to be extended to the property line abutting a lake maintenance
easement, located at Lot 19, Pelican Marsh Unit Four, Phase 2, also described as 992 Spanish
Moss Trail, in Section 27, Township 48 South, Range 25 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner requests a reduction of the rear yard setback for accessory structures from 10 feet
to (0) zero feet to allow the existing pool deck and screen enclosure to be extended towards the
rear property line which abuts a lake to increase the useable screen pool deck area by
approximately 280 square feet (10 feet by 28 feet).
STAFF RECOMMENDATION.
Not approving as no land related hardship has been identified.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(2) of the
Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of
the County Administrative Code.
2. The public hearing for this Petition was properly noticed and conducted in accordance with all
County and state requirements.
3. The public hearing was conducted electronically and in -person in accordance with
Emergency/Executive Order 2020-04.
4. The Petitioner and/or Petitioner's representative executed the Hybrid Virtual Quasi -Judicial
Public Hearing Waiver related to conducting the public hearing electronically and in -person.
5. The County representative introduced the Petition and staff recommendations, followed by
Petitioner and/or Petitioner's representative, and then public comment. There were no
objections to the Petition at the public hearing.
Page 1 of 4
6. The County's Land Development Section 9.04.03 lists the criteria for variances. The Hearing
Examiner having the same authority as the Board of Zoning Appeals may grant, deny, or
modify any request for a variance from the regulations or restrictions of the Collier County
Land Development Code.'
1. Are there special conditions and circumstances existing, which are peculiar to the location,
size and characteristics of the land, structure or building involved?
The record from the public hearing reflects that there are no special conditions or
circumstances peculiar to the location, size and characteristics of the structure or building
involved.
2. 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?
The record from the public hearing reflects that there are no special conditions or
circumstances that are the subject of this variance request.
3. 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?
The record from the public hearing reflects that the Pelican Marsh PUD allows for a zero
(0) rear setback for accessory structures if there is an architectural bank treatment in the
portion of the lake adjacent to the site but does not provide the same consideration for sites
that do not have architectural bank treatment. The site that is the subject of this variance
does not have architectural bank treatment, but it has a relatively flat slope from the
property line down to the control elevation line of the lake; the slope is 10:1 over the 20'
lake maintenance easement that is within the Lake Tract. Allowing them to extend their
screened pool deck to the zero (0) setback will provide them the same benefits that the
areas with architectural bank treatment are allowed, such as additional outside amenities
for their use to maintain a healthier, outdoor lifestyle. This zero (0) setback will not
adversely affect the lake, the neighboring properties or the community as a whole.
4. 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?
The record from the public hearing reflects that it is the minimum variance needed to
extend the pool deck and screen enclosure for the expansion of the useable pool deck area.
S. 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?
'The Hearing Examiner's findings are italicized.
Page 2 of 4
The record from the public hearing reflects that the granting of this variance will not grant
any special privilege. This reduction is allowed by the PUD for lots or tracts that have
existing architectural bank treatment within the zoning district. A similar request and
would be conferred equal consideration on a case -by -case basis.
6. 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?
The record from the public hearing reflects that the granting of this variance will be
harmonious with the intent and purpose of the PUD. It will not be injurious to the
neighborhood, nor will it be detrimental to the public welfare. The homeowner to the east
and west of this property has provided a letter of no objection to the extension. It is out of
their visibility triangle. The Foundation of Pelican Marsh has provided its approval of the
extension.
7. 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.?
The record from the public hearing reflects that the extension is adjacent to a lake and this
zero (0) setback is allowed on lakes that have existing architectural bank treatment with
proper approvals from the Foundation of Pelican Marsh and Collier County. It will not
create a negative impact on adjacent properties or the neighborhood.
8. Will granting the Variance be consistent with the GMP?
The record from the public hearing reflects that the approval of this Variance will not affect
or change the requirements of the GMP with respect to density, intensity, compatibility,
access/connectivity, or any other applicable provisions.
ANALYSIS.
Based on a review of the record including the Petition, application, exhibits, the County's staff
report, and hearing comments and testimony from the Petitioner and/or the Petitioner's
representative(s), County staff and any given by the public, the Hearing Examiner finds that there
is enough competent, substantial evidence as applied to the criteria set forth in Section 9.04.03 of
the Land Development Code to approve Petition. Both neighbors and the association provided no
objection letters.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-20200001329, filed by Gina R.
Green, P.E. of Gina R. Green, P.A. representing Diane K. Wanty Trust, with respect to the property
described as 992 Spanish Moss Trail and is legally described Lot 19, Pelican Marsh Unit Four,
Phase 2, in Section 27, Township 48 South, Range 25 East, Collier County, Florida, for the
following:
Page 3 of 4
• A 10-foot variance from the required rear yard accessory structure setback of 10 feet as
provided for in Ordinance 02-71, as amended, the Pelican Marsh Planned Unit
Development (PUD), Section 3.5.D. The request is to allow the existing pool deck and
screen enclosure to be extended to (0) zero feet from the property line which abuts a lake
maintenance easement.
Said changes are fully described in the Conceptual Site Plan attached as Exhibit "A" and are subject
to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A — Conceptual Site Plan
LEGAL DESCRIPTION.
992 Spanish Moss Trail and is legally described Lot 19, Pelican Marsh Unit Four, Phase 2, in
Section 27, Township 48 South, Range 25 East, Collier County, Florida
CONDITIONS.
All other applicable state or federal permits must be obtained before commencement of the
development.
DISCLAIMER.
Pursuant to Section 125.022(5) F.S., issuance of a development permit by a county does not in any
way create any rights on the part of the applicant to obtain a permit from a state or federal agency
and does not create any liability on the part of the county for issuance of the permit if the applicant
fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or
undertakes actions that result in a violation of state or federal law.
APPEALS.
This decision becomes effective on the date it is rendered. An appeal of this decision shall be done
in accordance with applicable ordinances, codes and law.
RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES
AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR
VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE
NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES.
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 4 of 4
EXHIBIT "A"
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