HEX Final Decision 2022-24HEX NO. 2022-24
HEARING EXAMINER DECISION
DATE OF HEARING.
April 28, 2022
PF.TTTInN
Petition No. VA-PL20210002610 - Request for a variance from section 5.03.06.E.6 of the
Land Development Code to reduce the required western side setback for a boat dock facility
from 7.5 feet to 6.3 feet for a lot with 51.054: feet of water frontage located at 5328 Barefoot
Bay Court and is further described as Lot 7, Block A, Barefoot Bay, in Section 06, Township
48 South, Range 25 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The Applicant desires to replace the existing single -slip boat docking facility with a two -slip
docking facility that is the subject of a companion Boat Dock Extension petition; BDE-
PL20210002609. The proposed boat docking facility will encroach 1.2 feet into the required 7.5-
foot western side/riparian setback; the eastern side setback will be satisfied.
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 1 of 5
6. There is a Companion Petition No. BDE-PL20210002609, to allow the proposed boat dock
facility to protrude a total of 40.3 feet into a waterway that is 156.1± feet wide.
7. 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.
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 applicant is opting to use a shore
perpendicular design as opposed to a shore parallel design to compensate for the
conditions; however, finds the proposed facility will still encroach slightly into the eastern
setback.
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?
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 Hearing Examiner's findings are italicized.
Page 2 of 5
The record evidence and testimony from the public hearing reflects that the proposed
docking facility has been reduced to the minimum size and still provides 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 wider
portion near the shoreline.
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?
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.
Page 3 of 5
ANAI,VSIS_
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-PL20210002610, filed by Mark
Oreus of Greg Orick II Marine Construction, Inc., representing Marc J. Rosenberg and Angela M.
Rosenberg, with respect to the property described as 5328 Barefoot Bay Court and is further
identified as Lot 7, Block A, Barefoot Bay, 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 less than 60 feet from 7.5 feet to 6.3 feet, for a lot with 51.05± feet
of water frontage for the benefit of the subject property.
Said changes are fully described in the Dock Site Plans attached as Exhibit "A" and the Proposed
Dock and Site Survey attached as Exhibit `B" and are subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A — Dock Site Plans
Exhibit B — Proposed Dock and Site Survey
LEGAL DESCRIPTION.
5328 Barefoot Bay Court and is further identified as Lot 7, Block A, Barefoot Bay, 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.
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"
Dock Site Plan
GREG ORICK MARINE Name: Marc Rosenberg Approved Signature: A
Address: 5328 Barefoot Bay Ct w r_
CONSTRUCTION, INC. Bonita Springs, FL 34134 A
(239) 949-5588 Date: 2/14/2022 Approved Date:
EXHIBIT "B"
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SCALE: 1 "=30'
FOUND PK NAIL
& DISK L87373
FOUND IRON ROD
& CAP LB6569
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CURVE RADIUS ARC LENGTH I CHORD LENGTH 1 CHORD BEARING DELTA ANGLE
C1 10.00 18.79' 1 16.15' 1 N 41"03'51" E 1 107'39'32"
FOUND PK NAIL
& DISK LB5151
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PREPARED FOR: MARC ROSENBERG
DATE OF FIELD SURVEY: OCTOBER 28. 2021
AGNOLI, BARBER & BRUNDAGE. INC.
PROFESSIONAL ENGINEERS, PLANNERS & SURVEYORS AND MAPPERS
134toW tlpned by Wayne D. Apnoti, P. S. M.
BY--- ON E=egmtW@sbbinc. . CN=Wayne D.
-B. A(g(�RM. Adnoo, R-5-m"o dl, Barber 8
Brundage. Inc.'• L=Naples, S=Florida, C=US
Date: 2=01 0S 16:1711-0500'
WAYNE D. AGNOU, R.S.M., NO. 5335 DATE ___________________
FOUND PK NAIL
& DISK UNKNOWN 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.
-- THIS 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
WITHOUT 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.
S 54*40'12" W
10.06'
N 35'24'36" E
9.76'
REFERENCE LINE
OGENERAL NOTES
D.E. 1. DIMENSIONS ARE IN FEET AND DECIMALS THEREOF.
2. BEARINGS ARE BASED ON THE FLORIDA STATE PLANE COORDINATE SYSTEM ,
EAST ZONE, NAD 83/90 DATUM AND REFERENCED TO THE
EAST LINE OF LOT 7, BLOCK A. BAREFOOT BAY,
SECTION 6, TOWNSHIP 48 SOUTH, RANGE 25 EAST,
COLLIER COUNTY, FLORIDA. AS BEING NORTH 36" 50' 01" WEST
3. HORIZONTAL COORDINATES WERE DERIVED BY GPS OBSERVATIONS USING A
TRIMBLE DUAL FREQUENCY RECEIVER (MODEL RIO), RECEIVING CORRECTIONS
N 8757'11" W FROM TRIMBLE VRS NOW RTN (REAL TIME NETWORK)
7.79 4. VERTICAL: ELEVATIONS ARE BASED ON THE NORTH AMERICAN VERTICAL DATUM
OF 1988 (NAVD 88).ELEVATIONS WERE ESTABLISHED USING LONG TERM
OBSERVATIONS WITH 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 WATERWARD EXISTING CONDITIONS ONLY. NO UPLAND IMPROVEMENTS
HAVE BEEN LOCATED UNDER THE SCOPE OF THIS SURVEY.
5328 BAREFOOT BAY CT.
10.0' CONSERVATION EASEMENT
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No. 5335
STATE OF c
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7
TOP OF F
LINE ON x CND
�FROPERTY
/ MLWL
PROPERTY LINE x�
MHWL
N x �� CND TOE OF RIP-F
TOP Or RIP -RA
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\V
'-10' CONSERVATION EASEMENT
x 4Nbn
�? x WD
x 6.42
WD
PROPOSED BOA'S UFT
W/11114' ALUMINUM PLATFORM. 7.05
WD
x 6.83
WD PROPOSED DOCK
W/ PILES
`-EXISTING NEIGHBORS DOCK
x TWO
x7.15
WD
LINE
-PROPOSED RE -INSTALL
BOAT LIFT
L
1
N
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SCALE: 1"=10'
SEMENT
(STING NEIGHBORS DOCK
NOTE: MHWL =0.01'
MLWL=-0.80'
WD = WATER DEPTH
(WATER DEPTH WAS DETERMINED AS DIFFERENCE
BETWEEN MLW ELEV. & BOTTOM ELEV)
CENTERLINE OF ROAD=4.52'
5328 BAREFOOT BAY CT. PROPOSED DOCK