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HEX Final Decision 2022-12HEX NO. 2022-12 HEARING EXAMINER DECISION DATE OF HEARING. February 24, 2022 PVTTTInN Petition No. VA-PL20210001516 - Request for a variance from section 5.03.06.E.5 of the Land Development Code to reduce the required eastern side setback for a boat dock facility from 15 feet to 5.1 feet for a lot with 63.2± feet of water frontage located at 177 Topanga Drive further described as Lot 86, Southport on the Bay Unit 1, in Section 06, Township 48 South, Range 25 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The petitioner desires to construct a new dock facility with two boat lifts, one for a 32.7-foot vessel and the other for two 11.7-foot personal watercraft. As proposed, the new dock facility will encroach 9.9 feet into the otherwise required 15-foot side/riparian setback on the east side. Dock protrusion is the subject of a companion Boat Dock Extension petition, BDE-PL20210000155. STAFF RECOMMENDATION. Approval with conditions. 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 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 5 6. There is a companion Petition No. BDE-PL20210000155, to allow the proposed boat dock facility to protrude a total of 51.1 feet into a waterway that is 125.1± feet wide. 7. Notice Requirements for Variance petitions are contained within LDC Section 10.03.06.F.2. The required Agent Letter was sent to all property owners located within 150 feet of the subject property and the Southport on The Bay Property Owners' Association on December 9, 2021, as evidenced by an executed Affidavit of Compliance contained within Attachment C. Notice of the Hearing Examiner hearing was provided by newspaper advertisement, mailed notice to owners within 500 feet of the site, and posting of a public notice sign on the site at least 15 days prior to the hearing. 8. 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 evidence and testimony from the public hearing reflects that the shape of the subject property shoreline and the fact it is a natural mangrove shoreline that cannot be removed or altered due to an overlaid Conservation Easement are the driving factors for this Variance request. The applicant's vessel, natural shoreline, shape of shoreline, and related riparian line locations create a pie shape buildable area that required the dock to protrude further out into the subject waterway. The subject dock satisfies setback requirements on the west side but not on the east as a result. The petitioner has designed the proposed facility with the circumstances considered, including the desire not to impede the use of neighboring dock facilities. 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 evidence and testimony from the public hearing reflects that the property's natural shoreline, shape of the shoreline, and Conservation Easement necessitated the additional protrusion (Subject of companion BDE) due to the pie -shaped riparian lines. The proposed dock has been designed to compensate for the above and to accommodate the desired vessel size. 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? 1 The Hearing Examiner's findings are italicized. Page 2 of 5 The record evidence and testimony from the public hearing reflects that the denial of the variance petition would not allow the owner to store any of their vessels at their property safely with the proposed dock and boat lifts 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 evidence and testimony from the public hearing reflects that the proposed docking facility has been reduced to the minimum size and still provide safe access. Also, the proposed docking facility is consistent with the other docking facilities along this shoreline as well as within the Little Hickory Bay that have been previously granted BDE's and some side yard setback variances. The proposed dock has been designed to eliminate excess decking and that the 4-foot finger pier portion does not allow sufficient space for routine maintenance and safe loading/unloading of vessels thus necessitating the terminal platform. 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 record evidence and testimony from the public hearing reflects that by definition, a Variance bestows some dimensional relief from the zoning regulations specific to a site. LDC Section 9.04.02 allows relief through the Variance process for any dimensional development standard. However, other properties facing a similar situation are entitled to make 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 evidence and testimony from the public hearing reflects that the granting of the subject variance request will be in harmony with the general intent and purpose of the LDC and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. 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 evidence and testimony from the public hearing reflects that the subject docking facility is uniquely situated and compensates for existing dock facilities as well as an existing Conservation Easement and maintains the integrity of the natural mangrove shoreline. 8. Will granting the Variance be consistent with the GMP? Page 3 of 5 The record evidence and testimony from the public hearing reflects that 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. ANALYSTS. 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. DECISION - The Hearing Examiner hereby APPROVES Petition No. VA-PL20210001516, filed by Mark Oreus of Greg Orick II Marine Construction, Inc., representing Timothy W. Paul, with respect to the property described as 177 Topanga Drive and is further identified as Lot 86, Southport on the Bay Unit One, in Section 6, Township 48 South, Range 25 East. Collier County, Florida, for the following: • A variance to reduce the required eastern side/riparian setback for dock facilities on lots with water frontage of 60 feet or greater from 15 feet to 5.1 feet for a lot with 63.2± feet of water frontage, for the benefit of the subject property. Said changes are fully described in the Survey attached as Exhibit "A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A — Survey LEGAL DESCRIPTION. 177 Topanga Drive and is further identified as Lot 86, 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 Page 4 of 5 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. March 25, 2022 Date Andrew Dickman, Esq., AICP Hearing Examiner Page 5 of 5 EXHIBIT "A" I(IjN, LJ SCALE: T"=30' LITTLE HICKORY BAY FOUND IRON ROO-- & CAP 'UNKNOWN"nC.NCR OP. LINE /MHWL EV.=O.DI' _ D 5/8' IRON ROD FOUN 10 U-E.� 17'26'29.- _ QDND IRON Rao =340 EI, CAP LR.5896 --- A=103. 50 OUNO IRON ROD & CAP L.B.2503 _ TOPANGA DRIVE PREPARED FOR: TIM PAUL DATE OF FIELD SURVEY; DECEMBER a, 2020 AGNOLI, BARBER & BRUNDAGE, INC. PROFESSIONAI ENGINEERS, PLANNERS & SURVEYORS AN() MAPPERS •.�y�o-A§POih�%.�.{b�.� 0.RY:AM '-Yro�s Mape.lnr.', LHaplec s=Flaw. aMs OeI.. Ss2teg,R2 WAYNE D. AGNOLI, R.S.M., N0. 5335 DATE 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, THS SITE PLAN SURVEY IS NOT VALID WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF THE FLORIDA LICENSED SURVEYOR AND MAPPER. ADDITIONS OR DELETIONS TO SURVEY MAPS OR REPORTS BY OTHER THAN THE SIGNING PARTIES WTHOUT THE WRITTEN CONSENT OF THE SIGNING PARTY OR PARTIES IS PROHIBITED BY CHAPTER 5J-17 FLORIDA ADMINISTRATIVE CODE, THIS SITE PLAN SURVEY IS CERTIFIED AS TO THE DATE OF FIELD SURVEY, NOT THE SIGNATURE DATE. GENERAL NOTES: 1. DIMENSIONS ARE IN FEET AND DECIMALS THEREOF. 2- BEARINGS ARE BASED ON THE FLORIDA STATE PLANE COORDINATE SYSTEM EAST ZONE, NAG 83/90 DATUM AND REFERENCED TO THE EAST LINE OF LOT 86, SOUTHPORT ON THE BAY, UNIT 1, SECTION 6, TOWNSHIP 48 SOUTH, RANGE 25 EAST, COLLIER COUNTY, FLORIDA, AS BEING NORTH 13' 57' 54" WEST. 3HOR17ONTAL COORDINATES WERE DERIVED BY CPS OBSERVATIONS USING A TRIMBLE DUAL FREQUENCY RECEIVER (MODEL R10), RECEMNC CORRECDONS FROM TRIMBLE VRS NOW RTN (REAL TIME NETWORK) 4 VERTICAL: ELEVATIONS ARE 13ASCD ON THE NORTH AMERICAN VERTICAL DATUM OF 19S8 (NAVE BB).ELEVATIONS WERE ESTABLISHED USING LONG TERM OBSERVATIONS WTH A TRIMBLE (MODEL RIO) DUAL FREQUENCY RECEIVER GPS (GLOBAL POSITIONING SYSTEM). SURVEYOR'S NOTE: THE PURPOSE OF THE SURVEY IS TO LOCATE THE SEAWALL AND THE WNLY. ATERWARD EXISTING CONDITIONS ONO UPLAND IMPROVEMENTS HAVE BEEN LOCATED UNDER THE SCOPE OF THIS SURVEY. 177 TOPANGA DR. for TIM PAUL aeegn: 5/8 IRON ROD me MAP OF SITE PLAN SURVEY OF LOT 66 6�Bwn: SOUTHPORT ON THE BAY, UNIT No SECTION 6. TOWNSHIP46 6211R118 RANGE 25 EAST cM1e ketl: _ (P.ATBDpK 15d PAGE 527 WDA EXHIBIT "A" N 01' QELEY.=O SCALE: 1 "=20' MANGROVE DRIP LINE LITTLE HICKORY BAY ROPOSED DOCK r15 160, ))STING DOCK PROPOSED BOAT LIFT WNGX171 PLUM. WALK PLANK: 12Z NOTE: TOTAL DISTANCE MANGROVE DRIP LINE ROPOSEO -" OF PROP. UNE AT MLW a 10•WOOD PILE `, MHML�63.2' ELEV.=—.80' MR) aSY 26.8 10•g / ROP. LINE/MHWL 177TOPANGADR, PROPOSED DOCK u ELEY.-0, 01 for TIM PAUL EXISTING FENCE Wle: MAP OF BITE MqN SURVEYOF LOT a6 0 n 60UTHAORT ON THE BAY, UNIT NO.1 SECTION B, TOWNSHIP U SOUTH a RANGE 2 EAST diecked: CONSERVATION EASEMENT IFIAT BOOK 158 PAGE U) 20' LANDWARD OF MHWL _ COLLIER COUNTY. FLORIDA aced k: SURVEYOR'S NOTE: THE MEAN HIGH WATER h■■■aye P■: dam: w� LINE AS SHOWN IS THE LEGAL BOUNDARY EGAL BOUNDARY LINE-& MHWL - — .Gt1GNOLl 1 "e 'IA�'E 21. M21 g BETWEEN PRIVATE AND STATE OWNERSHIP (SEE SURVEYOR'S NOTE) — :: ■■.'� dale: 1.=� am aN p: - (REFER TO P.B.iS, PG.51) PROPERTY LINE ROPERTYLINE _ -- -- ■■■■■F ARBERE�_ ■■ : � Or ■ RUNDAGE,H�, g„■p: i n /1 _--. Rde¢9onY EnBmews%an �teN Sie�as8�anaeeaDA/�A�xN M A x llr—1 •Auaaooem a FAa M: