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HEX Final Decision 2022-15HEX NO. 2022-15 HEARING EXAMINER DECISION DATE OF HEARING. March 10, 2022 PETITION. Petition No. VA-PL20210001262 - Request to allow a swimming pool that was built closer to the property line than code currently allows in East Naples; also described as an after -the - fact variance from LDC Section 4.02.01.A, Table 2.1, to reduce the required 25-foot front yard setback to 12.09 feet along the east property line of the subject corner lot for a single- family residence, located within a Residential Multiple-Family-6 (RMF-6) Zoning District, to allow a swimming pool to satisfy the required accessory structure front yard setback per LDC Section 4.02.03.1) for property located at 2072 Mills Lane, also known as Lots 1-2, Block E, Inomah, in Section 11, Township 50 South, Range 25 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The Petitioner seeks a Variance to allow for the continued existence of a swimming pool that was constructed in accord with an approved Collier County Building Permit, No. PRBD20210100203 for which plans were submitted to and subsequently approved by the County but later it was determined the lot to be a corner lot and not an interior lot, thus requiring this Variance. 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. Page 1 of 5 5. The required Agent Letter was sent to all property owners located within 150 feet of the subject property on November 24, 2021. 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. 6. 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. 7. 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.I 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 combined property is unique in that it is located upon a corner lot necessitating that it satisfies setback requirements for a corner lot; two full front yards and two side yards; however, the roadway to the north terminates at a cul-de-sac that doesn't directly abut the subject property. The subject property is only a corner lot by literal application of the plat (PB 2 PG 82). 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 applicant's pool contractor submitted a site plan to Collier County as part of the building permit process and said site plan was approved; unfortunately, the site plan depicted a standard lot whereas it is in fact a corner lot. The difference in lot types causes an encroachment issue along the east property line as a much larger setback is required for front yards as opposed to side yards. The typical rear yard reduction for listed accessory structures, including pools, is also not applicable as corner lots have no rear yard; said reduction is typically to 10 feet. 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 evidence and testimony from the public hearing reflects that modifying the existing pool to comply with the required setback would be cost prohibitive. The requested variance is needed to bring the existing pool into compliance with setback requirements and will further allow for the residence to maintain a clear title in the event of sale. 'The Hearing Examiner's findings are italicized. Page 2 of 5 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 if granted, is the minimum required to accommodate the existing pool. 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. As such, other properties facing a similar hardship would be 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 general purpose and intent of the LDC for residential single-family zoned districts is to promote lands for single-family housing in areas of low density. The requested Variance will be in harmony with the general intent and purpose of the Land Development Code and will not harm public safety, health, and 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 there is significant landscaping and a wood privacy fence along the east property line that will buffer any impacts from the pool with respect to peace and tranquility. 8. Will granting the Variance be consistent with the GMP? The record evidence and testimony from the public hearing reflects that approval of this Variance will not affect or change the requirements of the Growth Management Plan (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 Page 3 of 5 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. DFCTSION_ The Hearing Examiner hereby APPROVES Petition No. VA-PL20210001262, filed by Nicholas Chittenden of Edgewater Pools & Spa Services, LLC, representing Kevin Korban and Carolyn Sappenfield, with respect to the property described as 2072 Mills Lane, is legally recognized as Lots 1-2, Block E, Inomah, in Section 11, Township 50 South, Range 25 East, Collier County, Florida, for the following: • A n application for an after -the -fact variance from Section 4.02.0LA, Table 2.1, to reduce the required 25-foot front yard setback to 12.09 feet along the east property line of the subject corner lot for a single-family residence to allow a swimming pool that was built closer to the property line than code allows to satisfy the required accessory structure front yard setback. Said changes are fully described in the Boundary and Pool Spot Survey attached as Exhibit "A" and is subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A - Boundary & Pool Spot Survey LEGAL DESCRIPTION. 2072 Mills Lane, is legally recognized as Lots 1-2, Block E, Inomah, in Section 11, Township 50 South, Range 25 East, Collier County, Florida CONDITIONS. 1. All other applicable state or federal permits must be obtained before commencement of the development. 2. The applicant must satisfy all other requirements of Building Permit No. PRBD20210100203 and obtain a Certificate of Occupancy/Completion. 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. Page 4 of 5 APPF AL S. 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 5 of 5 EXHIBIT "A" SKETCH OF BOUNDARY SURVEY SURVEY01853 Pfomrty Address CaMrred To. Fbadzone In/ormotmn 2072 Mdis Lane KeYfi Kaban Comnueiry Number 12W67 Naples,FL 34112 Panel 0394 Su86r H EBecbve Dale 05116a012 Road Zane AE BFE 7' NA V D 198E NOOTNER PERSa/a[ENTIrYNAYRFi YLW I105 StMYEY LCODIOosmatiorn As Furnished' Lots 1-2• BrdGr E INOMAH according to Me plat thereo/as recorded in Plat Book 2, Page (s) 82. of BENCHMARK LAND SERVICES, INC. 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