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HEX Final Decision 2022-20Page 1 of 5 HEX NO. 2022-20 HEARING EXAMINER DECISION DATE OF HEARING. April 14, 2022 PETITION. Petition No. VA-PL20200001985 - Request for 8.5-foot variance from the required side yard setback of 15 feet as provided for in Land Development Code Section 5.03.06.E.5 for dock facilities on lots with water frontage of 60 feet or greater. The request is to allow a dock facility at 6.5 feet from the west side property/riparian line located at 199 Eveningstar Cay, further described as Lots 3 and 4, Eveningstar Cay at Port of the Islands, in Section 9, Township 52 South, Range 28 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The Petitioner requests an after-the-fact 8.5-foot variance from the required side setback of 15 feet. The existing dock facility is located 6.5 feet east of the depicted west side property/riparian line and therefore encroaches 8.5 feet into the required west side setback. 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 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. Page 2 of 5 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.1 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 existing property comprises two lots that have been combined for development which caused the required side setback to increase from 7.5 feet to 15 feet. It must be noted that the subject dock replaced another that had a similar encroachment issue, but which never raised a concern. 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 subject property comprises two lots that were combined for development prior to the current owner taking possession of the property. Additionally, the unpermitted replacement dock was built prior to transfer of ownership to the present owner. The current owner is attempting to bring the subject dock into compliance with the Land Development Code as best as they are able. The applicant has obtained a letter from the President of the Homeowner’s Association indicating the new dock does not appear to inhibit the neighboring property any more than the prior dock would have 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 the variance is at the seawall and the dock is already constructed. The old dock was slightly further into the requested setback of 6.5’. A literal interpretation of the Code would compel modifications that could impact the integrity of the built design; however, we are unable to verify the extent of any prior encroachment issue. 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? 1 The Hearing Examiner’s findings are italicized. Page 3 of 5 The record evidence and testimony from the public hearing reflects that the request is based on existing dock which would be the minimum variance. The proposed dock has been designed to align with the upland principal structure and yields a minimal amount of excess decking given the amount of water frontage. 5. 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. Furthermore, approval of the requested variance will allow for issuance of the building permit which will allow for mandatory inspections to occur thereby ensuring public safety. 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 property is located near the end of a canal that serves to reduce any boat traffic in the vicinity. 8. Will granting the Variance be consistent with the GMP? The record evidence and testimony from the public hearing reflects 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. 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 Page 4 of 5 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-PL2020001985, filed by Randy McNeil of Naples Marine Construction, representing Casey J. Rampe, as Trustee of the Jerold M. Rampe and Cheryl J. Rampe Trust, with respect to the property described as 199 Eveningstar Cay and is further identified as Lots 3 and 4, Eveningstar Cay at Port of the Islands, in Section 9, Township 52 South, Range 28 East. Collier County, Florida for the following: x An after-the-fact 8.5-foot variance from the required side setback of 15 feet as provided for in Section 5.03.06.E.5 of the Collier County Land Development Code (LDC) for dock facilities on lots with water frontage of 60 feet or greater. The request is to allow a dock facility at 6.5 feet from the west side property/riparian line for a lot with 80± feet of water frontage. Said changes are fully described in the Map of AsBuilt Survey attached as Exhibit "A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A – Map of As-Built Survey LEGAL DESCRIPTION. 199 Eveningstar Cay and is further identified as Lots 3 and 4, Eveningstar Cay at Port of the Islands, in Section 9, Township 52 South, Range 28 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 obtain a Certificate of Occupancy/Completion for the subject 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. Page 5 of 5 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. ________________________ ____________________________________ Date Andrew Dickman, Esq., AICP Hearing Examiner May 12, 2022 EXHIBIT “A” EXHIBIT "A"