HEX Final Decision 2022-34 HEX NO. 2022-34
HEARING EXAMINER DECISION
DATE OF HEARING.
July 28,2022.
PETITION.
Petition No. CCSV - PL20210001198 - Request to consider a Coastal Construction Setback
Line (CCSL) Variance, in accordance with Land Development Code (LDC) section 9.04.06,
for a 13.7-foot variance from the Coastal Construction Setback Line(CCSL)to allow for two
underground propane tanks.
GENERAL PURPOSE FOR THE PETITION.
The proposal consists of installing two underground propane tanks seaward of the CCSL for a
home that is currently under construction.
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 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.
6. The County's Land Development Section 9.04.06 lists the criteria for variances to the Coastal
Construction Setback Line. The Hearing Examiner having the same authority as the Board of
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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. The coastal construction setback line shall be that coastal construction setback line
established by the Department of Environmental Protection of the State of Florida pursuant
to F.S. § 161.053 and recorded in Coastal Setback Line Book 1, pages 1 through 12
inclusive, recorded October 31, 1974, as Clerk's Instrument No. 365665 of the public
records of Collier County, Florida.
The record evidence and testimony from the public hearing reflects that the proposed
structures and improvements are seaward of the CCSL.
2. Setback lines established under this Land Development Code shall be reviewed upon
petition of affected riparian upland owners. The Board of County Commissioners (BCC)
of Collier County shall decide,after due public notice and hearing,whether a change in the
setback line is justified, and shall notify the petitioner in writing.The present setback lines
are presumed to be correct, and no change in setback lines are presumed to be correct, and
no change in setback lines shall be made except upon an affirmative showing by petitioner
that any construction line established hereunder is a minimum of 150 feet landward of the
mean high-water line or seventy-five (75) feet landward of the vegetation line whichever
is greater; and that considering ground elevations in relation to historical storm and
hurricane tides, predicted maximum wave up rush, beach and offshore ground contours,
the vegetation line, erosion trends, the dune or bluff line, if any exist, and existing upland
development, that the general public health and welfare are preserved, upland properties
protected, and beach and sand dune erosion controlled.
The record evidence and testimony from the public hearing reflects that the applicant
proposes to install two underground propane tanks that will extend 13.7 feet beyond the
CCSL. The propane tanks will be placed approximately 49.6'feet from the landward edge
of the vegetation line and approximately 198.8 feet from Mean High-Water Line (MHWL).
3. It shall be unlawful for any person, firm, corporation, or agency, public or private, to
construct, reconstruct, or change existing structures, make any excavation, remove any
beach material or otherwise alter existing ground elevations, drive any vehicle on, over or
across any sand dune, or damage or cause to be damaged any sand dune, or the vegetation
growing thereon and/or seaward of said dune, seaward of the coastal construction setback
line, except as hereinafter provided.
The record evidence and testimony from the public hearing reflects that the petitioner will
provide a dune enhancement plan as required by the Growth Management Plan (GMP)
policies in Objective 10.4 and Land Development Code (LDC)section 3.03.06.
4. If in the immediate contiguous or adjacent area a "number of existing structures" have
established a reasonably continuous and uniform construction line closer to the line of
mean high water than the line as herein established,and if said existing structures have not
1 The Hearing Examiner's findings are italicized.
Page 2 of 5
been unduly affected by erosion, a proposed structure may be permitted along such line if
such proposed structure is also approved by the BCC.
The record evidence and testimony from the public hearing reflects that the properties
located both north and south of the subject property do not have structures which extend
beyond the CCSL. The installation of the propane tanks are the first structures in the area
to be placed beyond the CCSL; however, based on the review of the proposed tank
installation and the information provided, it does not appear that the proposed structures
will not create or be affected by erosion.
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 9.04.06 of
the Land Development Code to approve Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. CCSV-PL20210001198, filed by
Matthew D. Goddard, P.E. of Humiston and Moore Engineers, representing Paul R. Faganel and
Wendy C. Faganel Co-Trustees of the Paul R. Faganel Revocable Trust dated December 20,2013,
with respect to the property described as 7409 Bay Colony Drive and further described as Pelican
Bay Unit 8 that portion of TR" A" DESC in OR 1766 PG 1309 A/K/A Site 2, Collier County,
Florida, for the following:
• A Coastal Construction Setback Line (CCSL) Variance for a 13.7-foot variance from the
Coastal Construction Setback Line to allow for two underground propane tanks.
Said changes are fully described in the Proposed Plans attached as Exhibit "A" and are subject to
the condition(s) set forth below.
ATTACHMENTS.
Exhibit A—Proposed Plans
LEGAL DESCRIPTION.
7409 Bay Colony Drive and further described as Pelican Bay Unit 8 that portion of TR"A"DESC
in OR 1766 PG 1309 A/K/A Site 2, Collier County, Florida
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
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2. All proposed improvements shall be designed in accordance with the standards of the
Florida Department of Environmental Protection (FDEP) Bureau of Beaches and Coastal
Systems and an approved FDEP permit shall be obtained, and copies provided, prior to
issuance of a Collier County Building Permit.
3. Construction activities shall not occur within one hundred (100) feet of the sea turtle
nesting zone, defined by Collier County Land Development Code Chapter 3,between May
1 — October 31, sea turtle nesting season, without first submitting and obtaining any
required FDEP and Collier County Construction in Sea Turtle Nesting Area Permits.
4. Petitioner shall notify Environmental Planning Environmental Staff one week prior to
commencing work seaward of the CSSL and shall again contact Staff within one week
following completion of work seaward of the CCSL (239-252-2400).
5. Outdoor lighting associated with construction, or development within three hundred (300)
feet of the high tide line, shall follow Chapter 3 of the Collier County Land Development
Code.
6. Petitioner shall utilize only native coastal dune vegetation for all on-site landscaping
seaward of the 1974 Coastal Construction Control Line.
7. Petitioner shall re-vegetate the dune where the dune is devoid of coastal dune vegetation
and in any areas disturbed by the proposed improvements. Re-vegetation shall be
completed, according to the plan submitted to and approved by Collier County
Environmental Staff, prior to the issuance of a Certificate of Occupancy.
8. Minor revisions to this variance approval (including changes in siting and structures) may
be approved, in writing, by the County Manager, or his/her designee.
Site Specific Conditions:
9. All invasive exotic plants listed on the Florida Exotic Pest Plant Council's (FLEPPC) list
Category 1 and 2 must be removed from the existing beach dune vegetation.
10. Any gopher tortoise and or gopher tortoise burrow(s) located onsite must be protected in
accordance with LDC 3.04.02.
11. All areas seaward of the CCSL, outside of the footprint of approved structures and
improvements, shall be left in their natural condition, or landscaped using native coastal
dune vegetation exclusively.
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
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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.
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August 25, 2022
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 5 of 5
EXHIBIT "A"
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