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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 c 'L B.6' ro Ra.J• <u OPEN 'ae• &e POOL AREA FIR 5/8' v SPA, LB 6569 5.6 :RGOLA / .jq SITE 38 &S COVERED Pi\ AN— I /1385 STORY TWO STORY eo RESIDENCE FIR 5 NO ID NpB, q COVERED PAVER TNY 7 . ELEC. DRIVE WAY / ! Zry ti CA EAED' e QJ. ?• �41NPy 10 U i SQ Qi E 31 7' . VI 'A 0. �• N N,La 0' 'r S °o�CA \ J � J r3J FIR 5/8' FlR 5/8' 1 \ FIR 5/8- \-.,t•� N NBJ NO IOFlR 5/ L LB 6569 A4k�._ 1 aJ J K•Y J, 0 IO (2) RKHT �Il 1,,LP TANK N.27'43'38'E. 25.18' M--- -- N () TR WO N P to T z 1 p SIR Ce�gry Sy2``OLP� pR/ ';y „ O(/C aft• w \ No' \ R/Cy7Fq/C\ S\o +9iJolQl \I srrWB J7 OF OF � �.\.- ���•�, i zhryp'S I 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.