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HEX Final Decision 2022-18HEX NO. 2022-18 HEARING EXAMINER DECISION DATE OF HEARING. April 14, 2022 PETITION_ Petition No. VA-PL20210002556 — Request to allow a swimming pool that was built closer to the property line than code allows in Naples Park; also described as an after -the -fact variance from LDC section 4.02.01.A, Table 2.1, to reduce the required front yard setback from 25 feet to 18.6 feet on the west side along 7th Avenue North to allow an accessory swimming pool to meet the front setback requirement of LDC section 4.02.03.1), for a �0.22 acre property located at 702 107th Avenue North, also known as Lot 26, Block 12, Naples Park Unit No. 1, in Township 48 South, Range 25 East, Section 28 of unincorporated Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The Petitioner is requesting a variance to reduce the minimum front yard setback on the west side of the home facing 7th Street from 25 feet to 18.6 feet for the construction of a pool at 702 107th Avenue North. The subject property is a corner lot and not an interior lot, which is the reason for this Petition. 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 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 objections at the public hearing opposing the approval of the variance by residents at 1061h Avenue and 1071h Avenue North. 6. The subject property, owned by "Naples Florida Vacation Rentals, Inc.", is situated on the southeast corner of 107th Avenue North and 7th Street in the Naples Park neighborhood. The driveway accessing the property is on 71h Street. 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 Building Permit No. PRBD20210628472 was issued by Collier County on July 22, 2021. The permit was issued with setbacks based on an interior lot with a front, back and two side yards. However, the subject property is a corner lot with two front yards and two side yards. The pool is being constructed based on the 7.5 foot side yard setback listed in the permit when the correct yard requirement should have been 25 feet for a front yard. 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 sole issue is that the pool is being constructed into the setback by 6.4 feet. The reason for construction occurring in the setback is that the contractor followed the setbacks as listed in the approved building permit. The encroachment was not discovered until review of a spot survey after the pool shell and spa were built. Subsequently, the contractor signed off on accepting responsibility for continuing work simultaneously with the staff supported variance petition process. Construction of the pool has been completed. The final inspection is pending the outcome of the variance petition. 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 construction commenced upon issuance of Building Permit PRBD20210628472 on July 23, 2021. Significant time and resources were invested into the construction of the pool shell and 1 The Hearing Examiner's findings are italicized. Page 2 of 5 spa. A literal interpretation of the LDC would require the applicant to demolish the pool shell and spa and restart construction from the beginning. 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 variance, if granted, is the minimum required to accommodate the pool and meet all setback requirements. The pool was approved and constructed 18.6 feet from the western property line. Granting of the requested variance will have no adverse impact to public health, safety, and welfare. 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 Land Development Code § 9.04.02 allows relief through the variance process for any dimensional development standard. By definition, a variance bestows dimensional relief from the land development code regulations specific to a site. 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. However, there should be no assumption that a variance ofsimilar magnitude would be granted if another building permit contains the correct setbacks. 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 Variance will be in harmony with the general intent and purpose of the Land Development Code 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 no natural or physically induced conditions have been observed that will serve to ameliorate the goals and objectives of the Land Development Code. 8. Will granting the Variance be consistent with the GMP? The record evidence and testimony from the public hearing reflects that the Growth Management Plan (GMP) does not address individual variance requests related to dimensions. Approval of this variance will not affect or change the requirements of the GMP with respect to density, intensity, compatibility, access/connectivity, or other Page 3 of 5 applicable land use provisions with the exception of permitting an encroachment of an accessory structure into the front yard facing 7th Street. 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 this Petition. DECISION. The Hearing Examiner hereby APPROVES Petition No. VA-PL20210002556, filed by John Harold of FLA Surveys, Inc., representing Naples Florida Vacation Rentals, Inc., and Molly & David Rolwes, with respect to the property described as 702 107th Avenue North in Naples Park on the southeast corner of the 107th Ave North and 7th Street North intersection. The subject property (folio #62422200002) is identified as Naples Park Unit 1 Block 12 Lot 26 in Section 28, Township 48 South, Range 25 East consisting of ±0.22 acres in unincorporated Collier County, Florida, for the following: The Petitioner requests a variance from Section 4.02.0 LA, Table 2.1 of the Collier County Land Development Code (LDC) to reduce the minimum front yard setback from 25 feet to 18.6 feet in the front yard facing 7th Street for a pool in a RMF-6 zoning district. This variance petition will correct an error on the part of County in listing the incorrect setbacks on the building permit. Said changes are fully described in the Spot Survey attached as Exhibit "A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A - Spot Survey Exhibit B — Ordinance No. 2021-45 LEGAL DESCRIPTION. 702 107th Avenue North in Naples Park on the southeast corner of the 107th Ave North and 7th Street North intersection. The subject property (folio #62422200002) is identified as Naples Park Unit 1 Block 12 Lot 26 in Section 28, Township 48 South, Range 25 East consisting of ±0.22 acres in unincorporated Collier County, Florida CONDITIONS. 1. All other applicable state or federal permits must be obtained before commencement of the development. Page 4 of 5 2. The property owner shall adhere to Ordinance No. 2021-45, attached as Exhibit `B", if the property is used for vacation or "short-term" rental. 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. 12.2022 Date Andrew Dickman, Esq., AICP Hearing Examiner Page 5 of 5 EXHIBIT "A" SURVEY SKETCH OF: ASBUILT SURVEY SPOT ON POOL AND SPA SHELL STREET AODRE55: .D�.lxi.,o. C�IFDIaD TO „T,s .xo w"n RawEs LDCAL DESCRIPTION l01 i6, fiLOEN t1. NMiES PARx Oxil x0. i. ACCO6dx4 i0 ME RAl MKCO�ROS Di COWER Cdlxix Lf,ppq',,PAGE 106. Of !xE Pu6uC rC ru -... nw• snxnsc^.L. ILE 107th AVENUE (60' ROW) go& lO6t� n AVENUE (60' ROw) ,�w,�;>}.. NouT RaL.E� .ND DAnO 60L.es ME +oz IDTTx Axe x ASBUILT SURVEY NAM.. PIORIOA EXHIBIT "A" PL20210002556 - 702 107TH AVE N (VA) - Detailed Exhibit x 0 12.0' NAVU 00 1' 00 v #702 12. C ONE STORY 10.1 0 10.7 RESIDENCE ` � 8.6 11.3 FIFE _ 11.1 12.1' NAVD 11.9' � Z CONC 6.4 COVERED ?� 1 J o OR/� '"• Cn �? 35.6'rflAREA WAY 0 19.5' 1 86 11.3 12.0 11.9 n CONC LOT 26 12.1 1c.2 ORl I/E 11. 9 BLOCK 12 WA YUNI T 1 ROAD p 10.2 8. 10.8 11.5 11.9 _ 25.0' 20.0' B 18.6 o' 10.0 410 OOL GARAGE �} 10.2 N 11.5 o WE= 111.1 11.4 25.5 8.2 10. 12.2' NAVD 0 ♦6 1.8 11 < ti 0 10.5' 11.7� 30.0' +RIMETEk FENCE FIR 5/8" Z FIR NO ID O 10.1 N( 9.7 . N N.89'06'35"W. 71.43' (M) 100 S.89 53'00"W. 71.25' (P) L( O LOT 25 BL ZE BLOCK 12 63.0 PROPOSED POO c EQUIP. PAD .. 4.0'X8.0' FIR^5 8 / EL=12.2' NA VD RIGHT OF WAY 1 EXHIBIT "B" ORDINANCE NO. 2021- 4 5 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, ESTABLISHING SHORT-TERM RENTAL REGISTRATION REQUIREMENTS FOR OWNERS OF SHORT-TERM VACATION RENTALS; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, pursuant to Chapter 125, Florida Statutes, the Board of County Commissioners may adopt ordinances and resolutions necessary to preserve the health, safety and welfare of the residents of Collier County, except where prohibited by law; and WHEREAS, short-term vacation rentals situated in single-family residential neighborhoods is a growing interest; and WHEREAS, these regulations do not regulate duration or frequency of rentals, but are intended to address the impacts of transient occupants on established residential neighborhoods; and WHEREAS, the Board finds that the measures required by this Ordinance will help maintain residential use and enjoyment for Collier County citizens and residents. NOW, THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: Section One: Title This Ordinance shall be known and cited as "The Collier County Short -Term Vacation Rental Registration Ordinance." Section Two: Legislative Findings and Intent The Board hereby finds that the use of residential dwellings for short-term vacation rentals in established residential neighborhoods may create community impacts, including, but not limited to, excessive noise, accumulation of trash, on -street parking and diminished public safety; that to lessen these impacts and to protect the quiet enjoyment of neighboring residential units it is necessary to have a known, responsible person to contact who can reasonably address issues that may arise from the use of short-term vacation rentals, many of which are owned by non-residents; and that some owners of short-term vacation rentals may not properly remit required taxes and fees. Accordingly, it is the intent of this Ordinance to collect current and accurate information regarding short-term vacation rental properties and to encourage EXHIBIT "B" the appropriate management of these properties in order to protect the general health, safety and welfare of the residents and visitors to Collier County. Section Three: Definitions The following words, terms, and phrases, when used in this Ordinance, shall have the meanings set forth herein: Designated Responsible Party. The term "Designated Responsible Party" means any person eighteen (18) years of age or older designated by the Owner, tasked with responding to requests or complaints and other problems relating to or emanating from the Short -Term Vacation Rental. An Owner may retain a private property management company to serve as the Designated Responsible Party. The Designated Responsible Party shall be the agent of the Owner authorized to accept County -issued citations and notices of violation arising from the use of the Short -Term Vacation Rental. Owner. The term "Owner," shall mean the person or entity holding legal title to the short-term vacation rental property, as reflected in the Collier County Tax Collector's records. Short -Term vacation Rental. A "Short -Term Vacation Rental" means the rental of any habitable space, including a room, apartment, living quarters, in any residential building, including but not limited to condominiums, single-family or multi -family homes, for a term of six months or less, as provided in F.S. § 125.0104(3)(a), as amended, unless such person rents, leases, or lets for consideration any living quarters or accommodations which are exempt according to the provisions of F.S. Ch. 212. Any Owner who is not required to register with the Florida Department of Business and Professional Regulation, as defined by F.S. Ch. 509, is exempt from this ordinance. Section Four: Short-term Vacation Rental Requirements Prior to commencing any Short -Term Vacation Rental, it is the affirmative duty of the Owner to: 1. Register with the Florida Department of Business and Professional Regulation and the Collier County Tax Collector. 2. Obtain a Collier County Registration Certificate for each Short -Term Vacation Rental unit owned. The Certificate must identify that unit's Designated Responsible Party and current contact information. The Owner must notify the County in writing of any changes in ownership or of the Designated Responsible Party within ten (10) business days of such change. 3. Inform all guests prior to occupancy of the Short -Term Vacation Rental unit of all applicable Collier County ordinances, including noise, parking, and garbage. 2 4. Maintain all Short -Term Vacation Rental units under their control in compliance with the occupancy limits, as specified in the Collier County Code of Ordinances, Collier County Land Development Code, Florida Building Code, and Florida Fire Prevention Code. 5. Be available in person or by telephone or have the Designated Responsible Party available in person or by telephone twenty-four (24) hours a day, seven (7) days a week to address any law enforcement action, emergency response, or County ordinance violation arising from the rental of the Short -Term Vacation Rental unit and be willing and able to be onsite to address violations within the next day of notification. 6. Maintain the Short -Term Vacation Rental unit as specified in the Collier County Property Maintenance Code (Ord. No. 2010-02, as amended). 7. Include the Collier County Rental Registration Number of the Short -Term Vacation Rental unit in all advertising of the availability of accommodations for the Short -Term Vacation Rental unit. Advertising includes, but is not limited to print, radio, video, online, social media, and sharing economy platforms. Section Five: Penalty for Violations. Any violations of this Ordinance may be prosecuted and shall be punishable as provided by the Collier County Consolidated Code Enforcement Ordinance (Ord. No. 2010-04, as amended), and shall be subject to a fine or civil citation up to $500 per violation per day for ongoing repeating violations. Each day of renting a Short -Term Vacation Rental unit without having a valid County Registration Certificate issued pursuant to this Ordinance shall constitute a separate and distinct violation of this Ordinance. Guestsand Owners of Short -Term Vacation Rental units may be prosecuted separately and concurrently for a violation of any Collier County Ordinance, including but not limited to noise, parking, and garbage violations. Section Six: Conflict and Severability. In the event this Ordinance conflicts with any other Ordinance of Collier County or other applicable law, the more restrictive shall apply. If any court of competent jurisdiction holds any phrase or portion of this Ordinance invalid or unconstitutional, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. 3 Section Seven: Inclusion in the Code of Laws and Ordinances. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinance may be renumbered or re -lettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word. Section Eight: Effective Date. This Ordinance shall become effective as of January 3, 2022. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this ofVember , 2021. ATTEST: CRYSTAL K, KINZEI,, Clerk of Courts By: Attest as to ChairmaOeputy rk signature only. legality: Jeffrey A. If atzkAw, County Attorney BOA OF OUNTY COMMISSIONERS COL UNTY,FLO By: apgl- Penny lor, Chairman Thls ordinance fiW with the Secretary of Stote's Office the J '► day of L 6-&,-2e? and acknowledgement of that fifina received this day of By 4 DO "