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HEX Final Decision 2022-45HEX NO. 2022-45 HEARING EXAMINER DECISION DATE OF HEARING. September 22, 2022 PF.TITI"N Petition No. VA-PL20220004370 - Mill Run Circle - A request for approval of a variance from Section 4.5.h of Ordinance 88-25 for the Sleepy Hollow Planned Unit Development to reduce the west side yard setback from 10 feet to 6.89 feet; to reduce the east side yard setback from 10 feet to 7.72 feet; and to reduce the rear yard setback from 10 feet to 8.13 feet for a screened pool enclosure. The property (Folio 29505007602) is located at 7138 Mill Run Circle in Township 49 South, Range 25 East, Section 2 of unincorporated Collier County, Florida, and consists of 4:0.24 acres. GENERAL PURPOSE FOR THE PETITION. The petitioner seeks a variance to be able to replace the existing cage with a new cage, like for like. The existing cage encroached into the setback at three different points when the Petitioner purchased the home in 2018. 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. There were letters of no Page 1 of 5 objection submitted by the utility companies regarding their current easements from Comcast and Florida Power and Light, as well as from the Mill Run Homeowner's Association. 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 existing pool enclosure spans the width of the back of the house. The property is pie shaped with the rear having a lesser width than the front. Given this shape, the property was not of sufficient width to the build the enclosure to the dimensions that it was built. The next criterion #2 supports that the enclosure was built without a permit thereby avoiding the width limitation. 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 applicant purchased the property in 2018. The pool and enclosure were built and installed years before the petitioner bought the property. As detailed below, the screen enclosure appears to have been built without a permit by a previous owner. a. The building permit (#89-4885) for the original home was issued to the then owner, Victor Mader. The permit contains zero reference to a pool. b. A file separate from the permit (#89-4885(2) for a proposed home contains multiple mentions of a pool. A site plan includes a pool. However, the site plan contains no measurement for the east side setback; the west side setback figure has been crossed out with a new number written in. The floor plan includes a pool with a note saying, ` pool and spa specs by others ". There are no measurements indicating the location of the pool with respect to the property boundaries. c. A property card from the County Appraiser's Office with a date of August 27, 1990 indicates the presence of a pool. d. The current owner, the Jeffrey Chew Smith Revocable Trust, purchased the property on March 1, 2018. 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 Hearing Examiner's findings are italicized. Page 2 of 5 The record evidence and testimony from the public hearing reflects that currently there is a pool and pool enclosure on the petitioner's property. A literal interpretation of the Land Development Code (LDC) would prevent the applicant from replacing the cage. The setback issue came to light when the current homeowner applied for a building permit on July 23, 2021 (PRBD20210628472); the permit was denied as the enclosure encroached into multiple setbacks. 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 granting of the requested variance would allow for the replacement of the existing cage in the exact same location as where the original cage currently is. 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 LDC § 9.04.02 allows relief through the variance process for any dimensional development standard. By definition, a variance bestows dimensional relief from the land development code regulations specific to a site. 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. However, there should be no assumption that a variance of similar magnitude would be granted. 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 LDC and will not be injurious to the neighborhood or otherwise detrimental to the public 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 no natural or physically induced conditions have been observed that will serve to ameliorate the goals and objectives of the LDC. 8. Will granting the Variance be consistent with the GMP? The record evidence and testimony from the public hearing reflects that The Growth Management Plan (GMP) does not address individual variance requests related to Page 3 of 5 dimensions. Approval of this variance will not affect or change the requirements of the GMP with respect to density, intensity, compatibility, access/connectivity, or other applicable land use provisions except for permitting an encroachment of an accessory structure into the west and east side yards and the rear side yard. 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. DF,CTSION. The Hearing Examiner hereby APPROVES Petition No. VA-PL20220004370, filed by Sandra Smith, representing the Jeffrey Chew Smith Revocable Trust, with respect to the property as described in Ordinance No. 88-25, the Sleepy Hollow Planned Unit Development (PUD), for the following: • A variance from Section 4.5.h of Ord. No. 88-25, the Sleepy Hollow Planned Unit Development (PUD), to reduce the west side yard setback from 10 feet to 6.89 feet; to reduce the east side yard setback from 10 feet to 7.72 feet; and to reduce the rear yard setback from 10 feet to 8.13 feet for a screened pool enclosure Said changes are fully described in the Boundary Survey attached as Exhibit "A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A — Boundary Survey LEGAL DESCRIPTION. 7138 Mill Run Circle in the Sleepy Hollow PUD See Ordinance No. 88-25, the subject property is identified as The Crossings, Mill Run Lot 103 in Section 2, Township 49 South, Range 25 East consisting of ±0.24 acres in unincorporated Collier County, Florida CONDITIONS. All other applicable state or federal permits must be obtained before commencement of the development. 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. 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. October 21, 2022 Date Andrew Dickman, Esq., AICP Hearing Examiner Page 5 of 5 EXHIBIT "A" am .. SKETCH OF BOUNDARY SURVEY 5URVEY#18977 PmtrarNAddiess.• Csrbibd To: Flood Zone bAwwdoa: 7138 Af01 Run Crde $wxkvCORY &?M°w Jamay snm CavnmuNl Nw* r. 120087 Naples, FL 34109 P&ML 03M Suns H EI1ecdw Offie:OBr18Wl2 FbodZale: X � nnon�evesavawamnwrnavwnrsau+v>:r. � Legal Oosobdan AS Rafthod: BENCHMARK Ld 103, THE CROSSINGS MILL RUN, eaawc%V b Me pWOweol as moorded,r/ F1et Soak 14 Pege 39 LAND SERVICES, +NC. MMUO41'offt PubftRowidsofCose`GwWFtrft 1807J. AC. 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YLl raaMM6[frlMq Cell YO,N IeOM16aNn1rR MMI r1 r6al'K/AG/I® GOCSRYYMAO,'I Al�plpgrAMa _ TCl U�1w Oa 6! OVI d � � 5j M•�' SP�y ; L0 POINTS OF INTEREST. 1J SCREENED POOL 8 DECKAREA CROSSES 10'P.U.E 1 nch=30'11 t� GRAPHIC SCALE 0 1s so lIlmDyoMGy8w1 A Surrey d U1s 11e/son dosormed pvopsrfy w•as nYde Wldel111y 0/le0007 erld /l16Eb gls Afbe6/zrm Tedlalra/ Slendsrds as per Cho tor5J-17.0518.0152 FAG, pw,,uw 10 sxBon 472o27, fb!!de S�drbs. Pmhuknal Ssvela end Afapper F'SMNo. 534E Smte dFbdds o annaan+rw a' o rwararmaawnon —..- max � s.ra,irF ~ ax • aevrrwr � N9er[Yi1a6Y1 py/-yq�l[ �m/IWI/2 Gmvllpi rw aOYA1R.OV1(� amraORRIfrOP.1n ryy� Survey showing rear yard encroachment. (This is a snipet of actual survey which is protected and cannot be manipulated into this attachment.) nt 9u•Ny Ou . 14*Wl Sw%v/ CW a0.&M72 N;o I d2 NN vqd *IWA at Rplma Survey showing rear yard encroachment. (This is a snipet of actual survey which is protected and cannot be manipulated into this attachment.) /ERS 3' 15.40' O l� M .- 17.50' 27.24' p o oy 0 c0 to O I 7.50' PAVERS P N 5.5 3.00' PA*S 4.23' SCREENED 40 ENCLOSURE iN, I NTH POOL 001 Mj POOL N EDGE 1 J 10-49' 740, J ao CONC j .= Hfi s Co W� R LAKE TRACT "0" (DRAINAGE & CONSERVATION EASEMENT) H to A=26.00900" R=161.50' A=73.29'