HEX Final Decision 2022-33HEX NO. 2022-33
HEARING EXAMINER DECISION
DATE OF HEARING.
July 14, 2022
PETITION.
Petition No. VA PL20220001712 - 5740 Dogwood Way - Bare - An after -the -fact variance
request from Section 4.02.01.A, Table 2.1, of the Collier County Land Development Code, to
reduce the minimum side yard setback from 30 feet to 12.3 feet and to 11.3 feet for a 1-foot
roof overhang on the east side for an existing single family dwelling in the Estates (E) zoning
district, and for a variance to allow for an addition to the existing dwelling to reduce the
minimum side yard setback from 30 feet to 17.1 feet and to 16.1 feet on the east side for a 1-
foot roof overhang in the Estates (E) zoning district located at 5740 Dogwood Way also
known as The East 75 feet of Tract 93 and the West 75 feet of Tract 102, Golden Gate Estates,
Unit No. 33, in Section 17, Township 49 South, Range 26 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
Petitioner requests an after -the -fact variance to reduce the minimum side yard setback from 30 feet
to 12.3 feet and to 11.3 feet for a 1-foot-long roof overhand on the east side for an existing single-
family dwelling, and for a variance to allow for an addition to the existing dwelling to reduce the
minimum side yard setback from 30 feet to 17.1 feet and to 16.1 feet on the east side for a 1-foot
long roof overhang.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
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 no objections at the public hearing. The adjacent neighbors David
and Yana Roper submitted a letter of no -object to this variance request.
6. 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 when the subject
property was initially developed in 1994 it was only 75 feet wide and comprised 1.14±
acres; issuance of both a building permit and Certificate of Occupancy demonstrate that
said property was determined to be a legal non -conforming property at the time of
permitting. The LDC allows for a reduction of the required setbacks for legal
nonconforming properties; specifically, the required side yard was 10 percent of the lot
width not to exceed 30 feet. Since that time the adjoining property to the west, also
nonconforming having a lot width of 75 feet and area of 1.14± acres, was added to the
subject property; presumably for development purposes and not strictly for tax purposes.
The combination of the two properties results in a single legally conforming property,
minimum lot width of 150 feet and minimum area of 2.25 acres, which requires satisfaction
of current setback requirements; more specifically, a side yard requirement (setback) of
30 feet for both principal and accessory structures. The existing residence was in full
compliance with the County's development standards up to and until the two properties
were combined for development purposes. The current building permit process has also
revealed that a wetland determination completed by an environmental consultant has
revealed the presence of wetlands on approximately the southern one-half of the now
unified property. The applicant will need to provide an Exemption Letter or Environmental
Resource Permit from the Florida Department of Environmental Protection (DEP) prior
to any development within the area identified as wetlands; the provided survey and site
plan demonstrate that neither the existing residence nor the proposed addition encroach
into the area identified as wetlands.
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 existing
residence was not permitted or built by the current property owner/applicant. Said
property was deemed to be legal non -conforming at the time of permitting.
'The Hearing Examiner's findings are italicized.
Page 2 of 5
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 applicant
combined two non -conforming properties which had the unintended impact of increasing
the required side yard requirement (setback) from 10 percent of the lot width (7.5 feet) to
the full 30 foot requirement for conforming lots of record. An after -the -fact Variance is
requested to bring the existing residence into compliance with the 30 foot side yard
requirement on the east side and a more traditional variance is sought to accommodate an
addition to the residence; a one foot roof overhang is also to be compensated for by means
of this variance request. Severing the two properties and returning them to their prior legal
non -conforming state was contemplated; however, that would interfere with the desired
addition which, as proposed, would then cross property lines. Once any development
occurs that would serve to establish the properties were combined for development
purposes, as opposed to tax purposes, the unified property could not be split again.
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 existing single-
family dwelling has existed at its present location since its completion in 1995. The after -
the fact portion of this request is the minimum necessary to bring the existing dwelling unit
into full compliance with current yard requirements. The more conventional variance
request is to allow for an addition to the existing residence that will result in no greater
encroachment into the east side yard than already exists. Granting of the requested
variance will have no adverse impact to health, safety, and welfare.
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. 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 granting of the
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.
Page 3 of 5
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 an
approximately 8-foot-high wood panel fence between the subject property and the next
residence to the east. Additionally, the rearward half of the subject property has been
deemed to be wetlands that are not developable without exemption or special permissions
by the Florida DEP.
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.
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 the Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-PL20220001712, filed by Bria L.
Bare, representing Bria L. Bare and Joseph L. Bare, with respect to the property described as 740
Dogwood Way, approximately 0.3 miles west of Logan Boulevard South, and comprises the East
75 feet of Tract 93 and the West 75 feet of Tract 102, Golden Gate Estates, Unit No. 33, Golden
Gate Estates Unit No. 37, in Section 17, Township 49 South, Range 26 East, Collier County,
Florida, consisting of 2.27± acres, for the following:
• An after -the -fact variance request to reduce the minimum side yard setback from 30 feet
to 12.3 feet and to 11.3 feet for a 1-foot roof overhang on the east side for an existing single
family dwelling in the Estates (E) zoning district, and for a variance to allow for an addition
to the existing dwelling to reduce the minimum side yard setback from 30 feet to 17.1 feet
and to 16.1 feet on the east side for a 1-foot roof overhang.
Said changes are fully described in the Boundary and Topographic Survey attached as Exhibit "A"
and the Site Plan Sheet A0.2 attached as Exhibit `B" and are subject to the condition(s) set forth
below.
ATTACHMENTS.
Exhibit A — Boundary and Topographic Survey
Exhibit B — Site Plan Sheet A0.2
Page 4 of 5
Page 5 of 5
LEGAL DESCRIPTION.
740 Dogwood Way, approximately 0.3 miles west of Logan Boulevard South, and comprises the
East 75 feet of Tract 93 and the West 75 feet of Tract 102, Golden Gate Estates, Unit No. 33,
Golden Gate Estates Unit No. 37, in Section 17, Township 49 South, Range 26 East, Collier
County, Florida, consisting of 2.27± acres.
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
2. The applicant will need to provide an Exemption Letter or Environmental Resource Permit
from the Florida Department of Environmental Protection (DEP) prior to any development
within the area identified as wetlands.
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.
________________________ ____________________________________
Date Andrew Dickman, Esq., AICP
Hearing Examiner
August 11, 2022
EXHIBIT "A"
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