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HEX Final Decision 2022-44Page 1 of 5 HEX NO. 2022-44 HEARING EXAMINER DECISION DATE OF HEARING. September 8, 2022 PETITION. Petition No. VA-PL20220003470 - 741 93rd Avenue North - An after-the-fact variance request from Section 4.02.01.A, Table 2.1, of the Collier County Land Development Code (LDC), to reduce the minimum side yard setback from 7.5 feet to 6 feet on the west and from 7.5 feet to 5 feet on the east, and to allow for the further encroachment of a 2 -foot roof overhang on both sides pursuant to LDC Section 4.02.01.D.8, for an existing single family dwelling in the Residential Multi-Family-6 (RMF-6) zoning district, and for a variance from Section 4.02.03.D of the LDC to reduce the 7.5 foot west side yard from 7.5 feet to 6 feet to allow for an accessory attached one-family pool screen enclosure for property 741 93rd Avenue North, also known as Lot 15, Block 55, Naples Park Unit No. 5, in Section 28, Township 48 South, Range 25 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The applicant desires to construct an attached one-family pool screen enclosure, Building Permit Application No. PRBD20210841716, over an existing pool, Building Permit No. PRBD20210415581 will be in-line with the existing dwelling. Said building permit application could not be approved as the screen enclosure, although in line with the principal structure, does not comply with the current RMF-6 side yard requirement of 7.5 feet for interior single-family lots. As proposed, said screen enclosure is 1.5 feet into the western side yard setback. Also, with this petition, the applicant seeks to remedy the after-the-fact setback issues concerning the existing single-family residence, including the roof overhang, thereby eliminating the structure’s current nonconforming status thereby allowing for future improvements and a clear title. At the same time the applicant desires to obtain a variance to allow for a new attached one-family screen pool enclosure that will be in line with the principal structure; more specifically, to allow said screen enclosure 6 feet from the western side property line. 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. Page 2 of 5 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. Jerry and Gilbert Olton at 737 93rd Avenue N, Maria and Heliodoro Silva at 733 93rd Avenue N, John Godin at 745 93rd Avenue N, and Eileen and Gregory Hughes at 742 93rd Avenue N, submitted letters of no- objection to Petitioner’s 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 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 evidence reveals that when the subject property was initially constructed, in accord with a building permit issued in 1985, the property was deemed to be a legal nonconforming lot of record for which relaxed setbacks were applied. Issuance of the building permit together with a Certificate of Occupancy demonstrate the existing residence satisfied all zoning and building requirements at the time of construction. 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 was not the property owner at the time the existing single-family residence was permitted. The original permit and approved plans reveal the subject residence was approved using 5-foot side yard setbacks. Spot surveys were not required by the County at the time of construction. Additionally, the subject property is in its originally platted condition and the subject plat was approved and accepted by Collier County. 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? 1 The Hearing Examiner’s findings are italicized. Page 3 of 5 The record evidence and testimony from the public hearing reflects that a literal interpretation of the provisions of the Land Development Code (LDC) work would cause unnecessary and undue hardship on the applicant and create practical difficulties on the applicant because a literal interpretation renders the primary structure legally nonconforming and prevents common design modifications, like adding an accessory pool cage with the same dimensions as the primary structure or enclosing patios. Further, in the event of a catastrophic event, such as a hurricane, a literal interpretation of the provisions of the LDC would result in significant hurdles in rebuilding and improving the currently existing structure, a structure that has been in place for over 30 years 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 1986. 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 the construction of an attached one-family screen pool enclosure that will be in line with the existing dwelling; the pool enclosure itself will enhance public health, safety, and welfare by restricting access to the pool area by potential trespassers. The reduced setback will continue to allow for 10 feet between neighboring structures thereby allowing sufficient access for fire safety. 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. The following Variances have been granted within Naples Park to satisfy setbacks for pools, pool cages, and structures: Resolution 91-250, 95-380, 99-298, and 2020-061. In addition to the above, there are variances that have been granted in Naples Park for other structures in setbacks. 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 the granting of the Variance will be in harmony with the general intent and purpose of the Land Development Code and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare. The lots within Naples Park that remain in their originally platted condition and are located within the RMF-6 zoning classification are nonconforming with respect to lot Page 4 of 5 area and width. Based upon aerial photography it appears that both neighboring properties have a pool cage that is located 5 feet from at least one side property line. Additionally, four letters of no objection were obtained from neighboring property owners 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 a privacy fence along the western property line. 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. The future land use designation for the property is: Urban Residential. This Urban Residential Subdistrict is to provide higher densities, but no more than 16 dwelling units per acre. This variance is consistent with the pattern of development that has been in the Naples Park neighborhood for over 30 years, as evidenced by other approved variances for pools and pool cages within the side yard setbacks. 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 Petition. DECISION. The Hearing Examiner hereby APPROVES Petition No. VA-PL20220003470, filed by Zachary W. Lombardo, Esq., of Woodward, Pires & Lombardo, P.A., representing Celadongiordafl, LLC, with respect to the property described as 741 93rd Avenue North, also known as Lot 15, Block 55, Naples Park Unit No. 5, in Section 28, Township 48 South, Range 25 East, Collier County, Florida, consisting of 0.15± acres, for the following: • An after-the-fact variance request from Section 4.02.01.A, Table 2.1, of the Collier County Land Development Code (LDC), to reduce the minimum side yard setback from 7.5 feet to 6 feet on the west and from 7.5 feet to 5 feet on the east, and to allow for the further encroachment of a 2-foot roof overhang on both sides pursuant to LDC Section 4.02.01.D.8, for an existing single-family dwelling in the Residential Multi-Family-6 RMF-6) zoning district, and for a variance from Section 4.02.03.D of the LDC to reduce the 7.5-foot west side yard to 6 feet to allow for an accessory attached one-family pool screen enclosure for the subject property. Page 5 of 5 Said changes are fully described in the Proposed Site Plan Survey attached as Exhibit "A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A – Proposed Site Plan Survey LEGAL DESCRIPTION. 741 93rd Avenue North, also known as Lot 15, Block 55, Naples Park Unit No. 5, in Section 28, Township 48 South, Range 25 East, Collier County, Florida, consisting of 0.15± acres CONDITIONS. 1. All other applicable state or federal permits must be obtained before commencement of the development. 2. The applicant must satisfy requirements for the issuance of Building Permit Application No. PRBD20210841716 and obtain a Certificate of Completion upon the completion of construction for the subject pool screen enclosure. 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 EXHIBIT “A” DocuSign Envelope ID: 8E1E6202-2588-4D4F-B99F-0826F23CBDE6