HEX Final Decision 2021-58 HEX NO. 2021-58
HEARING EXAMINER DECISION
DATE OF HEARING.
October 28,2021
PETITION.
PETITION NO. BDE-PL20210000039 - Request for a 43-foot boat dock extension over the
maximum permitted protrusion of 20 feet allowed by Section 5.03.06 of the Collier County
Land Development Code for waterways greater than 100 feet in width, for a total protrusion
of 63 feet into a waterway that is 325±feet wide,to accommodate a new docking facility with
two boat lifts, one for a 43-foot vessel and the other to be decked over to be used for kayak
and paddleboard access, for property located at 219 Malibu Cove and further described as
Lot 19,Southport on the Bay Unit 1, in Section 6,Township 48 South,Range 25 East,Collier
County, Florida.
GENERAL PURPOSE FOR THE PETITION.
To replace an existing dock with a new dock facility with two boat lifts, one for a 43-foot vessel
and the other to be decked over to be used for kayak and paddleboard access. The proposed dock
facility will protrude 63 feet from the Mean High-Water Line (MHWL) which also serves as the
platted property line.As proposed,the new dock facility will also encroach 10 feet into the required
15-foott side/riparian setback which is the subject of a companion variance request.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(4) 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.
Page 1 of 7
5. There is a companion Petition No. VA-PL20210000098 for dock side/riparian setback
reduction.
6. The County representative introduced the Petition and staff recommendations, followed by
Petitioner and/or Petitioner's representative, and then public comment. No objections were
made at the hearing.
7. The County's Land Development Code Section 5.03.06.H. lists the criteria for dock facility
extensions. The Hearing Examiner may approve,approve with conditions,or deny a boat dock
extension request if it is determined that at least four(4)of the five (5)primary criteria, and at
least four(4) of the six(6) secondary criteria have been met.'
Primary Criteria:
1. Whether the number of dock facilities and/or boat slips proposed is appropriate in relation
to the waterfront length, location, upland land use and zoning of the subject property.
Consideration should be made of property on unbridged barrier islands, where vessels are
the primary means of transportation to and from the property. (The number should be
appropriate; typical single-family use should be no more than two slips; typical multi-
family use should be one slip per dwelling unit; in the case of unbridged barrier island
docks, additional slips may be appropriate.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET The subject property is improved with a single-family residence, allowing
for up to two boat slips, and is on an irregularly shaped lot with 113±feet of water frontage
within a residential component of a planned unit development (PUD). The petitioner
desires to remove the existing single-slip dock thereby allowing for its replacement with a
two-slip dock facility; one slip for a 43-foot vessel and the other to be decked over for
kayak and paddle board access.
2. Whether the water depth at the proposed site is so shallow that a vessel of the general
length,type and draft as that described in the petitioner's application is unable to launch or
moor at mean low tide (MLT). (The petitioner's application and survey should establish
that the water depth is too shallow to allow launching and mooring of the vessel(s)
described without an extension.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET The applicant states that this boat dock extension (BDE)request is based on
the existing shoreline conditions which consist of a shallow natural mangrove shoreline.
The mangrove shoreline is also a Conservation Easement that any proposed docking
facility is required to extend out beyond to ensure the shoreline remains in its natural state.
Limited lateral branches will be trimmed to install the dock access but is within the
footprint of the existing walkway. The proposed vessel is relatively large and is the driving
factor in this BDE request but due to the natural mangrove shoreline and shallow depths
1 The Hearing Examiner's findings are italicized.
Page 2 of 7
along the mangrove fringe requires the dock footprint be pushed further out into the subject
waterway. As designed the dock is consistent with all the other docks previously approved
within the Little Hickory Bay.
3. Whether the proposed dock facility may have an adverse impact on navigation within an
adjacent marked or charted navigable channel. (The facility should not intrude into any
marked or charted navigable channel thus impeding vessel traffic in the channel.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET The applicant states the proposed dock facility is at the terminus end of the
bay with little to no navigation within other than for neighboring properties.Additionally,
the overall protrusion has been reduced to the extent possible for the vessel to reach
adequate water depths to avoid dredging and impacts to the natural mangrove shoreline.
Water depth is not a factor pertaining to this criterion.
4. Whether the proposed dock facility protrudes no more than 25 percent of the width of the
waterway, and whether a minimum of 50 percent of the waterway width between dock
facilities on either side is maintained for navigability. (The facility should maintain the
required percentages.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The applicable waterway is 325±feet wide as measures from MHWL to
MHWL, the requested protrusion is 63 feet; therefore, the proposed dock facility will
occupy 19.38 percent of the width of said waterway. Given that the subject dock facility is
located within a basin it is difficult to say just how much room for navigability exists;
however, given that natural portions of the bay are far more restrictive the intent of this
challenge is satisfied.
5. Whether the proposed location and design of the dock facility is such that the facility would
not interfere with the use of neighboring docks. (The facility should not interfere with the
use of legally permitted neighboring docks.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. As depicted upon the Proposed Dock Plan, the proposed dock facility
provides adequate setbacks from both neighboring dock facilities; therefore, it will not
interfere with the use of said docks. The natural mangrove shoreline provides for a visual
buffer of the waterway and serves to ameliorate any views that might otherwise be
impacted.
Secondary Criteria:
1. Whether there are special conditions not involving water depth, related to the subject
property or waterway,which justify the proposed dimensions and location of the proposed
dock facility. (There must be at least one special condition related to the property; these
may include type of shoreline reinforcement, shoreline configuration, mangrove growth,
or seagrass beds.)
Page 3 of 7
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The applicant states the following: "The subject property has two special
conditions that are contributing to this BDE request other than the owner's vessel and
shallow water depths. The first condition is the natural mangrove shoreline that cannot be
impacted or removed due to it being recorded as a Conservation Easement which requires
us to design the dock on the waterward side of the mangrove fringe. The second condition
is the subject property's shape of shoreline that will only allow the proposed dock to be
placed just about in the same location of the existing docking facility due to the adjacent
existing and proposed docks. Rotating the direction of the proposed dock would create
potential ingress/egress issues with the adjacent neighboring dock to the west. " With
exception to water depth, sufficient justification has been provided; water depth is not a
factor of this criterion.
2. Whether the proposed dock facility would allow reasonable, safe access to the vessel for
loading/unloading and routine maintenance, without the use of excessive deck area not
directly related to these functions. (The facility should not use excessive deck area.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. Most of the proposed dock facility is comprised of a U-shaped dock with 4-
foot finger docks on either side of the primary lift. The second lift, to be decked over for
kayak and paddleboard access has no finger pier on the outer portion but has a 10-foot
area to the front. It is staff's opinion there is minimal extra decking and that the finger
docks are of the minimum width needed for safe operations.
3. For single-family dock facilities, whether the length of the vessel, or vessels in
combination, described by the petitioner, exceeds 50 percent of the subject property's
linear waterfront footage. (The applicable maximum percentage should be maintained.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The subject property has 113+feet of water frontage and the primary vessel
to be docked is 43 feet which is 38.05 percent of the waterfront. Kayaks and paddleboards
are non-motorized and should not be included as part of this calculation.
4. Whether the proposed facility would have a major impact on the waterfront view of
neighboring property owners. (The facility should not have a major impact on the view of
a neighboring property owner.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The proposed dock has been designed within the designated riparian lines
and is consistent with the existing docks along the subject shoreline. Additionally, the
natural mangrove shoreline serves as a visual buffer of the waterway.
5. Whether seagrass beds will be impacted by the proposed dock facility. (If seagrass beds
are present, compliance with subsection 5.03.06.J of the LDC must be demonstrated.)
Page 4 of 7
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The submerged resources survey provided indicates that no seagrass beds
exist within 200-feet of the proposed dock. No seagrass beds will be impacted by the
proposed dock facility.
6. Whether the proposed dock facility is subject to the manatee protection requirements of
subsection 5.03.06(E)(11) of this Code. (If applicable, compliance with section
5.03.06(E)(11) must be demonstrated.)
The record evidence and testimony from the public hearing reflects that the criterion is
NOT APPLICABLE. The provisions of the Collier County Manatee Protection Plan do
not apply to individual docks behind individual residences.
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 5.03.06.H
of the Land Development Code to approve the Petition. The Petition meets 5 out of 5 of the
primary criteria and 5 out of 6 secondary criteria(one secondary is not applicable in this case).
DECISION. .
The Hearing Examiner hereby APPROVES Petition Number BDE-PL20210000039, filed Jeff
Rogers of Turrell, Hall & Associates, Inc.,representing Michael and Ellen Fasching, with respect
to the property described as 219 Malibu Cove, located at the southwest corner of San Mateo Drive
and Malibu Cove. Said property is identified as Lot 19, Southport on the Bay Unit One, in Section
6, Township 48 South, Range 25 East. Collier County, Florida, for the following:
• A 43-foot boat dock extension over the maximum permitted protrusion of 20 feet allowed
by Section 5.03.06 of the Collier County Land Development Code for waterways greater
than 100 feet in width, for a total protrusion of 63 feet into a waterway that is 325± feet
wide, for the benefit of the subject property.
Said changes are fully described in the Dock Plans and Boundary and Topographic Survey
attached as Exhibit "A" and the Restoration Plan attached as Exhibit "B" and are subject to the
condition(s) set forth below.
ATTACHMENTS.
Exhibit A—Dock Plans and Boundary and Topographic Survey
Exhibit B—Restoration Plan
Page 5 of 7
LEGAL DESCRIPTION.
678 Palm Court,further described as Lot 27, Block F, Goodland Isles Second Addition, in Section
18, Township 52 South, Range 27 East, Collier County, Florida
CONDITIONS.
All other applicable state or federal permits must be obtained before commencement of the
development.
1. A Special Treatment Permit(ST) must be obtained prior to obtaining a building permit for
the proposed docking facility.
2. Companion Petition No. VA-PL20210000098 must be approved for the subject dock
facility to be constructed within the setbacks provided herein; absent such approval, this
BDE is rendered null and void.
3. The restoration plantings described within the attached Restoration Plan must be installed
and inspected prior to the issuance of a Certificate of Completion for the subject boat dock
facility.
4. A Building Permit must be issued for a principal structure on the subject property prior to
issuance of a Building Permit for an accessory structure; to Wit: The Proposed Dock
Facility. 4. A Certificate of Occupancy must be issued for a principal structure at this
location prior to the issuance of an accessory structure;to Wit: the Proposed Dock Facility.
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.
Page 6 of 7
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.
X . ..,..,Z__t__.._.,
November 24, 2021
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 7 of 7
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EXHIBIT " B "
RESTORATION PLAN
219 Malibu Cove
Folio ID#74435002201
S 06/T 48S/R 25,Collier County,FL
t. INTRODUCTION
Collier County Environmental staff are currently reviewing an application for a
single-family residential docking facility located at 219 Malibu Cove. The
County's review determined that the existing Conservation Easement(CE)area
along the property shoreline will require some restoration plantings due to open
areas that have historically been impacted with fill and/or cleared allowing sod to
grow. This work within the easement area was not authorized therefore Collier
County staff is requiring that the CE area be restored to its natural condition by
removing any fill placed within and planting the area with native trees, shrubs,
and groundcover.
The property is identified on the property appraiser's website as 74435002201,
which is approximately 0.59-acre lot situated within Section 06,Township 48
South, and Range 25 East, Collier County, Florida.
This document outlines the restoration plan for the onsite Conservation Easement
area.
II. EXISTING CONDITIONS: HABITAT& SOIL DESCRIPTIONS
The subject site consists of 0.59 acre dedicated to a single-family residential
dwelling with a conservation easement area along the entire shoreline. The
conservation easement area was historically impacted by minor clearing of
vegetation and the placement of fill material outside the authorized area. The
conservation easement area will have to be restored as required by Collier County
Environmental Staff.
Existing soil is fill which was placed on the property at the beginning of the
residential construction. Any additional fill will be removed from the easement
area as part of this restoration plan.
III. PROPOSED PLANTINGS/RESTORATION
The owner is being required to restore the conservation easement area by
removing any fill that was placed there to create a consistent slope,from the
remaining upland area to the existing natural shoreline elevation and planting
native vegetation. This will allow for a very gradual slope and once the fill is
removed the proposed plantings outlined below will be installed throughout the
area.
EXHIBIT "B"
The proposed plantings shall include a minimum of 12 midstory trees on 8'
centers consisting of just buttonwood trees due to the location of the plantings vs
the location of the MHWL. The groundcover will consist of 30 plants on 3'
centers in and around the proposed buttonwoods including sea oxeye and bay
cedar. All species listed should be utilized in even amounts if possible, but exact
species numbers could be based on supply availability. Planting specifics are
outlined below.
Midstory plants: Number of Trees= 12
Buttonwood (Conocarpus erectus) 12
All midstory plantings will be installed on 20ft. centers with a minimum 3-5
gallon pot containers.
Groundcover plants: Number of Plants=30
Sea Oxeye (Borrichia frutescens) 15
Bay Cedar(Suriana maritima) 15
All groundcover plantings will be installed on 3ft. centers with a minimum 1
gallon pot containers.
Irrigation maybe required for the top half of the easement area due to the distance
from the ground water table to help ensure the plantings survival. For the lower
half of the easement no irrigation is proposed due to the final elevations of this
portion of the conservation easement being closer to the tidal water table which
should help keep the plantings hydrated naturally.
IV. CREDENTIALS
Jeff Rogers
Project Manager for Turrell, Hall &Associates since 2005
B.S. Degree in Environmental Science, Rollins College
Sustainable Development Course-Galapagos Islands, Equador
Completed Southwest Florida Association of Environmental Professionals
Wetland Delineation Training Course-2006
Florida Department of Environmental Protection Environmental Resource Permit
Course-2006
Completed a FAEP Plant ID Class with Dr. Hall from the University of Florida-
2006
Primary career focus: Permit Compliance Mitigation and Monitoring