HEX Final Decision 2022-40HEX NO. 2022-40
HEARING EXAMINER DECISION
DATE OF HEARING.
August 11, 2022
PETITION.
Petition No. VA RPL20210003159 -1385 Wood Duck Trail Wicklund - request for an after -
the -fact variance from Section 3.5.I, Table I, Side Yard for Single -Family Detached
dwellings, from 7.5 feet to 2 feet, as provided for in Ordinance 02-71, as amended, the Pelican
Marsh Planned Unit Development (PUD), and to reduce the maximum allowable setback for
roof overhangs, pursuant to Section 04.02.01.D.8 of the Collier County Land Development
Code (LDC), from not closer than 1-foot from the property line to 8-inches from the property
line. This request is to allow the continued existence of a pergola constructed 2 feet from the
western property line with an overhang of 8-inches from the western property line of 1385
Wood Duck Trail, also known as Site 36, Pelican Marsh Unit Two, in Section 27, Township
48 South, Range 25 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner requests a Variance to allow for the continued existence of a pergola that was
constructed by a prior owner of the subject property without having obtained a building permit.
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 no objections at the public hearing. The adjoining property owner
Robin Lubin residing at 1379 Wood Duck submitted a letter of no objection to the 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.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 the subject
property is an irregular shaped lot that abuts lands allocated as "Reserve " on two sides.
Said Reserve Lands are very similar to preserves as they are for the most part undeveloped
and serve as both conservation area and open space.
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 current
property owner has provided a notarized statement dated May 27, 2022, in which he
acknowledges the encroachment of the pergola were discovered as part of the purchase of
the subject property. Said pergola was constructed at the direction of a prior owner of the
property without the benefit of a formally reviewed and issued building permit. The current
property owner seeks to resolve all issues with respect to permits and setbacks to clear any
Code and/or title issues with the property.
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 a literal
interpretation of this zoning code will work unnecessary and undue hardship on the
Applicant and will create practical difficulties on the Applicant. The Applicant inherited
the special conditions and circumstances from his predecessor in title; the Applicant did
not create the encroachment. Further, the Applicant only has one neighbor (located
immediately to the west and adjacent to the subject encroachment), which neighbor does
not object to this Application. Given the adjoining property owner offers no objection to
the existing pergola
'The Hearing Examiner's findings are italicized.
Page 2 of 5
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, is
the minimum required to accommodate the existingpergola which will result in no negative
impacts with respect to 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 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 Sections 3.1 and
3.3 of the PUD documents reveal the purpose and intent of the Residential Land Use
District is to accommodate a full range of residential dwelling types, compatible non-
residential uses, a full range of recreational and educational facilities, essential services
and customary accessory uses. The requested Variance will be in harmony with the general
intent and purpose of the PUD which has been deemed to be consistent with the Land
Development Code and will not harm public safety, health and 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 two sides of the
subject property abut lands allocated as "Reserve District. " Additionally, existing
landscaping on the adjoining property to the west is sufficient to cause the adjoining
property owner to support this variance request.
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-PL20210003159, filed by Noel I
Davies, Esq. of Davies Duke, PLLC, representing Douglas F. and Kathleen A. Wicklund, with
respect to the property described as 1385 Wood Duck Trail and is legally recognized as Site 36,
Pelican Marsh Unit Two, in Section 27, Township 48 South, Range 25 East, Collier County,
Florida, and comprises 0.29± acres, for the following:
• An after -the -fact variance from Section 3.5.I, Table 1, Side Yard for Single -Family
Detached dwellings, from 7.5 feet to 2 feet, as provided for in Ordinance 02-71, as
amended, the Pelican Marsh Planned Unit Development (PUD), and to reduce the
maximum allowable setback for roof overhangs, pursuant to Section 4.02.0l.D.8 of the
Collier County Land Development Code (LDC), from not closer than 1-foot from the
property line to 8-inches from the property line. This request is to allow the continued
existence of a pergola constructed 2 feet from the western property line with a roof
overhang of 8- inches from the western property line of the subject property.
Said changes are fully described in the Survey attached as Exhibit "A" and are subject to the
condition(s) set forth below.
ATTACHMENTS.
Exhibit A — Survey
LEGAL DESCRIPTION.
1385 Wood Duck Trail and is legally recognized as Site 36, Pelican Marsh Unit Two, in Section
27, Township 48 South, Range 25 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 apply for and obtain an after -the -fact building permit together with a
Certificate of Occupancy/Completion for the existing pergola; failure to comply with this
condition could result in a Code Enforcement action against the current property owner
and/or any future property owner.
Page 4 of 5
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.
APPF, AI N.
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"
SURVEY SKETCH OF AN BOUNDARY SURVEY
ELEVATIONS SH7VN ARC IN NAVD DATUM, WERE ACQUIRED USING GPS TECHNOLOGY AND
NAVE A TOLERANCE OF +/- 04'
NOT FIN FENCE CONSTRUCTION
NOT FOR CONSTRUCTION
NOT FOI DESIGN
IMPROVEMENTS OTHER
THAN THOSE SHOVN, IF STREET ADDRESS
ANY, WERE NOT LOCATED
1385 VOOD DUCK TRL
NAPLES, FL
Curve number 1
Radius= 50.00
Delta= 66'42'42'
Arc= 58.22
Tangent= 32.91
Chord= 54.98
Chord Brg. N.71'18'14"W. (P)
N.7105'27'W. 55.01' (M)
Curve number 2
Radius= 50.00
Delta= 4124'35"
Arc= 36.14
Tangent= 18.90
Chord= 35.36
Chord Brg. N.83'57'17"W. (P)
N.83.47'52'W. 35.34' (M)
Curve number 3
--------------
Radius= 1200.00
Delta= 02'21'44"
Arc= 49.47
Tangent= 24.74
Chord 49.47
Chord Brg. N.62'04'08'W. (P
N.62'16'05'W. 49.58' (M
DUUULAS WICKLAND
CUPYRIGNT 202A FLA. SURVEYS CORP.
THE LINES ON THIS SKETCH DO ACT CONSTITUTE OVACRSHIP.
PACE 1 OF 3
SEE REVERSE SIDE FOR PACE 3 OF 3
N
W E
SCALE 1' = 30'
LINE TABLE
Line Bearing Distance
Lt S.73'21'39"E. 30.40' (P)
�RO.6' E S.7Y20'44'E. 29.76' (M)
L1 FIR 5/9' 9.1 L2 S.85'42'59"E. 19.93' (P)
ce LB 656 m S.85'40'04'E. 20.03' (M)
r 22 0FIR L3 S.17'42'38"E. 29.89' (P)
15H.3 15' DE LB 65/69 20 S.17Y1'17'E. 29.84' (M)
153' 7p
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OPEN 'ae•
&e POOL AREA FIR 5/8'
v SPA, LB 6569
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N.27'43'38'E. 25.18' M--- -- N
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ORADIUS yh
POINT
LEGAL DESCRIPTION :
SITE 36, PELICAN MARSH UNIT 2, ACCORDING TO THE PLAT
THEREOF AS RECORDED IN PLAT BOOK 22, PAGES 41 THROUGH
48, INCLUSIVE, OF THE PUBLIC RECORDS OF COLLIER
COUNTY, FLORIDA.
CERTIFICATION :
I HEREBY CERTIFY THIS SURVEY WAS MADE UNDER MY
RESPONSIBLE CHARGE AND MEETS THE STANDARDS OF PRACTICE
AS SET FORTH BY THE FLORIDA BOARD OF PROFESSIONAL
SURVEYORS & MAPPERS CHAPTER 5J17.05-052, FLORIDA
ADMINSTRATIVE CODE, PURSUANT TO SECTION 472.027 FLORIDA
STATUTES.
F. a
ulenneA,7.
NA Jp59
0 7 1e 39 w
GRAPHIC SCALE
+
H£ASURED BEARINGS SHOWN ARE BASED
ON STATE PLANE COORDINATES (FLORIDA
CAST ZONE), WHICH IS GRID NORTH AS
ESTABLISHED BY NOS, AS ACQUIRED BY
USING GPS TECHNOLOGY AND IS THE
'BASIS OF BEARINGS'.
BY :- '�''y'''�",,', _ SURVEY DATE : 08/28/2021-
CLINTON W, FINSTT CFM, PIS #2453 RONALD W. WALLING PSM #6473
LELAND F. DySARD, PIS #3869 MARY E FINSTAD, CFM, PSM #5901 QUALITY CONTROL
NOT VALID WITHOUT SURVEYOR'S SIGNATURE AND EMBOSSED SEAL BY :_ MEF DATE : 09/01/2021
NOT A CERTIFICATION OF TITLE, ZONING, EASEMENTS OR FREEDOM OF ENCUMBRANCES.
FLORIDA STATUTE 5J-17.05 (3) (c): TWO SITE BENCHMARKS REQUIRED FOR CONSTRUCTION
NOTE, PROPERTY OWNER SHOULD OBTAIN WRITTEN FLODD ZONE DETERMINATION FROM LOCAL PERMITTING, NOTE, IF APPLICABLE, FEACCS SHOWN MEANDER
PLANNING AND BUILDING DEPARTMENT PRIOR TO ANY CONSTRUCTION PLANNING AND/OR CONSTRUCTION. ON OR UFF LINES (APPROX. LOCATION ONLY)
3884 PROGRESS AVE.. SUITE 104 NOTE REVISIONS
F.L.A. SURVEYS CORP. NAPLEs, FL 34104 IN COMPLIANCE WITH F.A.C.17NSJ-77.052
N2) OM LI CE LOCATION OF
EASEMENTS OR RIGHT-OF-VAY OF
PROFESSIONAL LAND SURVEYORS & MAPPERS -LB 6569 239-404-7129 239-580-2795 RECORD, OTHER THAN THOSE ON
239-250-2792 RECORD PLAT, IS REQUIRED, THIS
9220 BONITA BEACH ROAD, STE 200 1NFORMATION MUST BE FURNISHED TO PROJECT NO:
DRAWN BY: SVJ PARTY CHIEF: I AD BONITA SPRINGS, FL 34135 THE SURVEYOR AND MAPPER. 21-88.379-SPC
NOT FOR FENCE CONSTRUCTION
NOT FOR CONSTRUCTION
NOT FOR DESIGN
PHOTO PAGE
F.L.A. SURVEYS CORP.
PROFESSIONAL LAND SURVEYORS & MAPPERS - LB 6569
3884 PR0GRFSS AVE.. SUI Il I04 I
NAPLI:%. FLORIDA 34104
239403-1600 FAX 403-8600
9220 BONIT % III %Ci1 ROAD. STF 20D
BONII % SPRINGS. I I ORIDA 34135
PAGE 2 OF 3
REVISIONS
PROJECT NO.