HEX Final Decision 2022-10HEX NO. 2022-10
HEARING EXAMINER DECISION
DATE OF HEARING.
February 24, 2022
PF.TTTInN
Petition No. BDE-PL20200002208 - Request for a 36.9-foot boat dock extension over the
maximum permitted protrusion of 20 feet for waterways greater than 100 feet in width to
allow construction of a boat docking facility protruding a total of 56.9 feet into a waterway
that is 271.6f feet wide to allow a new boat dock facility with two boat slips, each with a boat
lift, one for a 39-foot vessel and the other for a 20-foot vessel and paddle craft for the benefit
of property described as Lot 20, Southport on the Bay, Unit One, located at 226 Malibu Cove,
in Section 6, Township 48 South, Range 25 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner desires to construct a new boat dock facility with two boat slips, each with a boat
lift, one for a 39-foot vessel and the other for a 20-foot vessel and paddle craft.
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.
5. The County Staff presented the Petition followed by the Petitioner and/or Petitioner's
representative, public comment and then rebuttal by the Petitioner and/or Petitioner's
representative. There were no objections at the public hearing.
Page 1 of 6
6. The County's Land Development 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 (BDE) 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 249± feet of water frontage
within a residential component of a PUD. The petitioner desires to construct a dockfacility
with two boat slips, each with a boat lift, one for a 39 foot vessel and the other for a 20-
foot vessel and paddle craft.
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. This BDE request is based on the existing 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. There is insufficient water depth within 20 feet of the MHWL to moor a vessel
of the length, type, and draft, as that which is proposed.
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 proposed dock facility does not intrude into any marked or charted
navigable channel and is near the terminus end of the bay with little navigation other than
for neighboring properties.
'The Hearing Examiner's findings are italicized.
Page 2 of 6
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 271.6± feet wide as measured from MHWL to
MHWL, the requested protrusion is 56.9 feet; therefore, the proposed dock facility will
occupy 20.95 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, staff is comfortable
stating that 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. The proposed dock facility satisfies setback requirements and is 53.8 feet
from the nearest neighboring dock facility.
Secondary Criteria:
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.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The subject property has a natural mangrove shoreline that cannot be
impacted or removed due to it being recorded as a Conservation Easement which requires
the dock to be on the waterward side of the mangrove fringe; the dock has been designed
with a 4-foot-wide walkway to transverse the conservation easement.
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. The proposed boat dock facility has been designed to moor two marine
vessels and a paddle craft; said design does not include any deck area that is not necessary
for reasonable, safe, access to the vessels for loading/unloading and routine maintenance
of said vessels.
Page 3 of 6
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 249± feet of water frontage and the two vessels
combined total 59 feet; therefore, they will account for 23.69 percent of the waterfront
value. Paddle craft 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
BEENMET. 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.)
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 single-family dockfacilities exceptfor those within the seawalled basin of Port
of the Islands; the subject property is not located within Port of the Islands.
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 Petition. The Petition meets 5 out of 5 of the primary
criteria and 5 out of 6 secondary criteria with the sixth criterion being not applicable.
Page 4 of 6
nF C'ISION_
The Hearing Examiner hereby APPROVES Petition Number BDE-PL20200002208, filed by Bill
Nelson of Greg Orick II Marine Construction, Inc. representing Dan Davis, with respect to the
property described as 226 Malibu Cove and is formally identified as Lot 20, Southport on the Bay
Unit One, in Section 6, Township 48 South, Range 25 East. Collier County, Florida, for the
following:
• A 36.9-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, to allow a new boat dock facility with two boat slips, each with a
boat lift, that will protrude a total of 56.9 feet into a waterway that is 271.6± feet wide for
the benefit of the subject property.
Said changes are fully described in the Boundary Survey, Bathometric and Proposed Boat Dock
Plans attached as Exhibit "A" and are subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A — Boundary Survey, Bathometric and Proposed Boat Dock Plans
LEGAL DESCRIPTION.
226 Malibu Cove and is formally identified as Lot 20, Southport on the Bay Unit One, in Section
6, 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.
Page 5 of 6
Page 6 of 6
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
March 25, 2022
EXHIBIT "A"
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PREPARED FOR: DAN DAVIS
DATE OF FIELD SURVEY: JUNE 25. 2020
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AGNOU, BARBER dL BRUNDAGE, INC.
PROFESSIONAL ENGINEERS, PLANNERS dL SURVEYORS AND MAPPERS
Digitally signed by Wayne 0 Agnos, R S M
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BY Wn V nP n Qnnnll R .i', M. AgneFi, R S M', 0="Aonoh, Barber 8
FOUND IRON RO
Brundage, Ina", Bage, L=Naples, S=Flonda C.
ICAP STAMPED MOA
Date 2021 D504103818.04'00'
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WAYNE D. AGNOU. R.S.M., NO. 5335 DATE
SCALE: 1"=40'
THIS SITE PLAN SURVEY MEETS THE STANDARDS OF PRACTICE SET FORTH
BY THE FLORIDA BOARD OF LAND SURVEYORS IN CHAPTER 5J-17, FLORIDA
/
ADMINISTRATIVE CODE, PURSUANT TO SECTION 472.027. FLORIDA STATUTES.
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OUND IRON ROD
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& CAP STAMPED T&A
THIS SITE PLAN SURVEY IS NOT VAUD WITHOUT THE SIGNATURE AND THE
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ORIGINAL RAISED SEAL OF THE FLORIDA LICENSED SURVEYOR AND MAPPER.
ADDITIONS
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OR DELETIONS TO SURVEY MAPS OR REPORTS BY OTHER THAN THE SIGNING
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PARTIES
WITHOUT THE WRITTEN CONSENT OF THE SIGNING PARTY OR PARTIES IS
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PROHIBITED BY
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CHAPTER 5J-17 FLORIDA ADMINISTRATIVE CODE.
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THIS SITE PLAN SURVEY IS CERTIFIED AS TO THE DATE OF FIELD SURVEY, NOT
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THE SIGNATURE DATE.
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GENERAL NOTES:
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1. DIMENSIONS ARE IN FEET AND DECIMALS THEREOF.
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2. BEARINGS ARE BASED ON THE FLORIDA STATE PLANE COORDINATE SYSTEM ,
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EAST ZONE. NAD 83/90 DATUM AND REFERENCED TO THE
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EAST LINE OF LOT 20, SOUTHPORT ON THE BAY, UNIT 1,
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SECTION 6, TOWNSHIP 48 SOUTH, RANGE 25 EAST,
COLLIER COUNTY, FLORIDA, AS BEING NORTH 32' 30' 35- WEST.
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3. ELEVATIONS ARE BASED ON NAVD 1988.
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4. THE VERTICAL CONTROL ACCURACY FOR THIS SURVEY WAS BASED ON THE
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