HEX Final Decision 2023-12HEX NO. 2023-12
HEARING EXAMINER DECISION
DATE OF HEARING.
March 9, 2023
PETITION_
PETITION NO. VA-PL20200002603 - 2890 68th Street SW - Request for an after -the -fact
variance from the Land Development Code section 2.03.01.B.2.d to reduce the required side
yard setback from 10.5 feet to 5.8 feet and from section 4.02.01.D.8 to increase the allowed
roof overhang from 3 feet to 6.97 feet on the north side to allow for the continued existence
of a storage shed on a nonconforming lot in the Estates (E) Zoning District at 2890 68th Street
SW, also described as the south 105 feet of Tract 52, Golden Gate Estates, Unit No. 29, in
Section 30, Township 49 South, Range 26 East, Collier County, Florida. [Coordinator: John
Kelly, Planner II] Commission District 4
GENERAL PURPOSE FOR THE PETITION.
The owner of the subject homesteaded property seeks to allow the continued existence of a 37.6-
foot by 14.5-foot storage shed with a 1.17-foot roof overhang that was constructed 5.8 feet from,
and slightly askew to, the northern (side) property line; 367.1± feet west of the eastern (front)
property line. The owner/applicant has conveyed that he was forced to abandon another shed along
the south side of the property as it was flooding because of an adjoining property shedding water
onto his lot. No permits were applied for or obtained for the new storage shed which was placed
upon a dryer portion of the subject property near a shed owned by the adjoining property owner to
the north. The owner/applicant was unaware of any issues until such time as he was contacted by
the County's Code Enforcement Division.
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.
Page 1 of 6
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 9.04.03 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.'
A. 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 comprises 1.59 acres and has a lot width of 105 feet. The LDC presently requires
lots located within the E zoning district to be a minimum of 2.25 acres with a lot width of
150 feet. Said property was determined to be legally nonconforming when it received initial
development approval by means of a building permit in 1988.
B. 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 subject
property is legally nonconforming with respect to lot area and width. Additionally, the
petitioner asserts that "There are special conditions consisting of the existing lower
topography caused by the construction of a massive truck and auto repair shop owned by
DPT of Florida and bordering the South Side of the property. When the foundation of the
DPT building was made, they raised the height of their lot significantly. DPT also build
[sic] driveways and parking lot that no longer absorb rainwater. The water runoff
saturates and floods the south side of my backyard where my old shed was built. " The
petitioner further states that the location chosen for the new storage shed was made with
the knowledge of the adjoining property owner to the north. Said location was previously
used by the northern neighbor for a carport; therefore, the ground had already been
stabilized with approximately 4 feet of compacted gravel which made it the highest and
driest surface on the property. Said carport was removed prior to the petitioner taking
ownership of the property. There is no evidence to refute Petitioner's testimony and claims.
C. 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 confirms Petitioner's
statement that "A literal interpretation of the zoning code would drastically reduce the
i The Hearing Examiner's findings are italicized.
Page 2 of 6
value and enjoyment of our 1.6 acres of the backyard. The undue hardship of forcing the
demolition of the new shed flows from the strict application of the setback ordinance and
is peculiar to the property because of the narrow shape of the lot. Denying the variance
application will unnecessarily create undue hardship and severely reduce the property's
value. The backyard is only accessible from the south side because the septic tank and
house location and the topography of the north side are not suitable for traffic. Building a
new shed on the south side would require untold metric tons of fill dirt plus trenching to
mitigate flooding. It would be nearly impossible to maintain this size yard without the new
shed to store tools and supplies. that property to the south is shedding stormwater which
limits where a shed could be located if not to be flooded... " Furthermore, because the
property is already nonconforming, it cannot be further reduced in size at a later date.
D. 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 will not have adverse impact to health, safety, and welfare. The
variance if granted will be the minimum required to allow for the site to function within its
existing building footprints and will not be detrimental to health, safety, and welfare. This
is an after -the fact request to accommodate the location of the subject storage shed. No
other improvements are part of this variance request. Granting of the variance, together
with the completion of the building permit process, will allow the petitioner to use said
shed as was intended. Completion of required building inspections will allow for the
structure itself to be found safe and ensure that it satisfies building code standards.
E. 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 the variance
bestows some dimensional relief from the zoning regulations specific to the 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.
F. 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 Land Development
Code and will not harm public safety, health, and welfare. The Land Development Code
generally intends to allow for the types of structures and improvements that are subject of
these variance requests. It is also a common condition in the immediate vicinity for
homesites to include additional structures in proximity to rear and side yards, so the
Page 3 of 6
granting of the variance is not injurious to the neighborhood. The applicant states: "This
variance request is consistent with the residential use in the Golden Gate Estates where it
is being requested. The structure will be undergoing all building inspections and
corrections in conformity with current county code regulations. The structure was built
approximately the same distance from the property line as the north neighbor's house so
that it does not look out of place. The new shed is a clean, safe, solid, and aesthetically
pleasing storage structure. My neighbors have signed letters of support for this variance
request. The neighborhood is made up of different sizes and shapes including some long,
very narrow lots. These lots require a one -by -one corrective approach. Enabling full-time,
local residents to build the necessary infrastructure to adequately maintain our properties
in everybody's best interest and consistent with the growth management plan. Having a
clean and organized yard is a highly desirable characteristic for our neighborhood and
our county. " The LDC allows for storage sheds as accessory uses to single family
residences within the E zoning district. Granting of the variance will allow for permitting
procedures to be engaged which includes inspections for structural integrity and wind
load. Four letters of no objection from neighboring property owners were provided were
supplied and are part of the record.
G. 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 the applicant states:
"I planted a large cocoplum hedge on the north property line dividing out backyards and
made an allowance of a few more feet into my yard so that the new neighbor can go in
between her AC unit and the hedge. I also built the new shed at a further distance than the
neighbor's house is to my north property line. I also built a four foot deep `French drain'
in the front side of the new shed, filled with gravel, and redirecting any water runoff away
from structures and towards natural dispersion and absorption in the east side of the
backyard as shown in the submitted stormwater sketch. " County planning staff note that
lots within the E zoning district are larger than typical single-family lots and clearing is
both regulated and minimized by the County. The neighboring property to the north is also
nonconforming with respect to area and width; it is 75± feet wide, therefore, it has a side
yard setback requirement of 7.5 feet (10 percent of the lot width).
H. 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 GMP
is silent to the issuance of a variance application and therefore the granting of the variance
will not be inconsistent with the GMP. 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 4 of 6
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. PETITION NO. VA-PL20200002603,
filed by the owner, Ulysses Nabal Jaen, with respect to the property at 2890 68th Street SW, for
the following:
• An after -the -fact variance from the Land Development Code section
2.03.0l .B.2.d to reduce the required side yard setback from 10.5 feet to 5.8 feet
and from section 4.02.01.D.8 to increase the allowed roof overhang from 3 feet
to 6.97 feet on the north side to allow for the continued existence of a storage
shed on a nonconforming lot in the Estates (E) Zoning District at 2890 68th
Street SW, also described as the south 105 feet of Tract 52, Golden Gate Estates,
Unit No. 29, in Section 30, Township 49 South, Range 26 East, Collier County,
Florida.
Said changes are fully described in the Survey Sketch of Boundary Survey attached as Exhibit "A"
and the Roof Overhang Details attached as Exhibit `B" and are subject to the condition(s) set forth
below.
ATTACHMENTS.
Exhibit A — Survey Sketch of Boundary Survey
Exhibit B — Roof Overhang Details
LEGAL DESCRIPTION.
2890 68th Street SW, also described as the south 105 feet of Tract 52, Golden Gate Estates, Unit
No. 29, in Section 30, Township 49 South, Range 26 East, Collier County, Florida.
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
2. An after -the -fact building permit must be applied for and obtained for the construction of
the storage shed, as described herein, in the specified location. Required inspections must
be requested and, upon satisfaction of said inspections, a Certificate of Completion must
be obtained.
Page 5 of 6
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.
4.2023
Date
Andrew Dickman, Esq., AICP
Hearing Examiner
Page 6 of 6
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83. (R)=RADIAL
NOT VALID WITHOUT
84. R=RADIUS
$5. RING = ITEM DETECTED BY METAL DETECTOR BUT
PAGES 1 AND 2 OF 3
NOT RECOVERED
86. RNG= RANGE
GENERAL NOTES
87. ROW =RIGHT-OF-WAY
ABSTRACT NOT REVIEWED
8& RR SPK = RAILROAD SPIKE
89. SAT=SATELLITE DISH
N = NORTH
90. SEC = SECTION
S =SOUTH
91. SPK&D = SET PK WITH DISC WITH LB NUMBER
E = EAST
92. SIR = SET 5/8" IRON ROD WITH LB NUMBER
W = W EST, OR ANY COMBINATION THEREOF
93. IBM = TEMPORARY BENCHMARK
94. TECO= TAMPA ELECTRIC COMPANY
1.
°=DEGREES
95. TEL = TELEPHONE FACILITIES
2.
` = MINUTES WHEN USED IN A BEARING
96. TOB = TOP OF BANK
3.
"= SECONDS WHEN USED IN A BEARING
97. TP = TRANSMITTER PAD
4.
` = FEET WHEN USED IN A DISTANCE
98. TUE = TECHNOLOGY UTILITY EASEMENT
5.
"= INCHES WHEN USED IN A DISTANCE
99. TVR= TELEVISION RISER
6.
t="MORE OR LESS" OR"PLUS OR MINUS"
100. TWP=TOWNSHIP
7.
A=ARC DISTANCE
101. UE= UTILITY EASEMENT
8.
AC=ACRES
102. VF=VINYL FENCE
9.
A/C = AIR CONDITIONING PAD
103. W = WATER SERVICE
10.
AE=ACCESS EASEMENT
104. WB=WATER BOX
11.
B.E. = BUFFER EASEMENT
105. WF= WOOD FENCE
12.
BM=BENCHMARK
106. WPP=WOOD POWER POLE
13.
BOB =BASIS OF BEARING
107. WREC= WITHLACOOCHEE RIVER ELECTRIC
14.
BRG=BEARING
COMPANY
15.
C#= CURVE NUMBER
108. A = DELTA OR CENTRAL ANGLE OF CURVE
16.
C = CALCULATED
109. DIMENSIONS ARE IN FEET AND IN DECIMALS
17.
CB = CATCH BASIN
THEREOF
18.
CHB=CHORD BEARING
110. ELEVATIONS SHOWN HEREON ARE NAVD 1988
19.
CHD=CHORD
UNLESS OTHERWISE STATED
20.
CLF = CHAINLINK FENCE
111. ALL PHYSICAL IMPROVEMENTS SHOWN WITHOUT
21.
CM = CONCRETE MONUMENT
DIMENSIONS ARE FOR INFORMATIONAL PURPOSES
22.
CO = CLEAN OUT
ONLY. THAT THEY DO EXIST, BUT WERE NOT
23.
CONC = CONCRETE
NECESSARILY MEASURED IN THE FIELD.
24.
CP = CONCRETE PAD
112. NOTE: LEGAL DESCRIPTION PROVIDED BY CLIENT
25.
CSW = CONCRETE SIDEWALK
UNLESS OTHERWISE NOTED.
26.
CTV= CABLE TV RISER
113. EASEMENTS AND RIGHT OF WAYS SHOWN ARE PER
27.
CUE-- COLLIER COUNTY UTILITY
RECORDED PLAT OR AS FURNISHED BY THE CLIENT
EASEMENT
114. FOUNDATION LINE BELOW THE SURFACE OF THE
28.
D = DEED
GROUND IS NOT REFLECTED
29.
DE= DRAINAGE EASEMENT
115. THIS SURVEY IS NOT TO BE USED FOR
30.
DH = DRILL HOLE
CONSTRUCTION PURPOSES UNDER ANY CONDITION
31.
DI=DROP INLET
UNLESS OTHERWISE STATED
32.
ELEC= ELECTRIC
116. NO UNDERGROUND INSTALLATIONS OR
33.
EOP=EDGE OF PAVEMENT
IMPROVEMENTS HAVE BEEN LOCATED EXCEPT AS
34.
FOR = EDGE OF ROAD
NOTED
35.
EOW = EDGE OF WATER
117. NO INSTRUMENTS OF RECORD REFLECTING
36.
F= AS LABELED OR FOUND IN THE FIELD
EASEMENTS, RIGHT OF WAYS, AND/OR OWNERSHIP
37.
F.A.C.=FLORIDA ADMINISTRATIVE CODE
WERE FURNISHED THIS SURVEYOR EXCEPT AS SHOWN
38.
FCC =FOUND CROSS CUT
t18. THERE ARE NO VISIBLE ENCROACHMENTS EXCEPT
39.
FCM = FOUND CONCRETE MONUMENT
THOSE AS DELINEATED ON THIS PLAT OF SURVEY
40.
FEMA = FEDERAL EMERGENCY
119. TIES ARE TO FIELD LINES UNLESS OTHERWISE
MANAGEMENTAGENCY
NOTED
41.
FDH = FOUND DRILL HOLE
120. THERE MAYBE ADDITIONAL RESTRICTIONS AND/OR
42.
FEE = FINISH FLOOR ELEVATION
EASEMENTS THAT ARE NOT RECORDED ON SAID
43.
FH = FIRE HYDRANT
PLAT THAT MAY BE FOUND IN THE PUBLIC
44.
FIP = FOUND IRON PIPE
RECORDS OF THIS COUNTY
45.
FIR = FOUND IRON ROD
121. FENCES MEANDER ON AND OFF LINE,
46.
FN = FOUND NAIL
APPROXIMATE LOCATION ONLY UNLESS STATED
47.
FND=FOUND
OTHERWISE.
4&
FPK = FOUND PK NAIL
122. THE LINES ON THIS SKETCH DO NOT CONSTITUTE
49.
FPK&D = FOUND PK NAIL AND DISC
OWNERSHIP
50.
GTE = TELEPHONE RISER
123. THE INTENT OF THIS SURVEY IS FOR TITLE
51.
ILLEG. = ILLEGIBLE LB OR PSM NUMBER
TRANSFER ONLY UNLESS STATED OTHERWISE.
52.
LB = LICENSED BUSINESS
124. FLORIDA STATUTE : TWO SITE BENCHMARKS ARE
53.
LBE = LANDSCAPE BUFFER EASEMENT
REQUIRED FOR CONSTRUCTION.
54.
LME = LAKE MAINTENANCE EASEMENT
125. THIS SURVEY DOES NOT REFLECT OR DETERMINE
55.
LP=LIGHT POLE
OWNERSHIP.
56.
M = MEASURED
126. 121. F.E.M.A. FLOOD HAZARD MAPPING: THIS DATE
57.
ME = MAINTENANCE EASEMENT
PRODUCT WAS NOT DESIGNED TO MAKE PRECISE IMOUT
58.
MH = MANHOLE
FLOOD RISK DETERMINATIONS. THIS PRODUCT IS NOT
59.
NAVD 1988= NORTH AMERICAN VERTICAL
SUITABLE FOR ENGINEERING APPLICATIONS AND CANNOT
DATUM OF 1988
BE USED TO DETERMINE ABSOLUTE DELINEATIONS OF
60.
NGVD 1929 = NATIONAL GEODETIC
FLOOD BOUNDARIES. CALL 1-877-FEMAMAP OR EMAIL A
VERTICAL DATUM OF 1929
MAP SPECIALIST AT:
61.
NO ID= NO IDENTIFYING MARKINGS
HTTP://WWW.FEMA.GOV/PLAWPREVENT/FHMTTSD EMAP.SHT
62.
(NR) = NON -RADIAL
PROPERTY OWNER SHOULD OBTAIN WRITTEN FLOOD ZONE
63.
NTS= NOT TO SCALE
DETERMINATION FROM LOCAL PERMITTING, PLANNING
64.
OHP= OVERHEAD POWER
AND BUILDING DEPARTMENT PRIOR TO ANY
65.
OHU = OVERHEAD UTILITY LINE
CONSTRUCTION PLANNING AND/OR CONSTRUCTION
66.
O.R. = OFFICIAL RECORD BOOK
127. IN COMPLIANCE WITH F.A.C. 5,1-17.052(2)(D)(4)-IF
67.
P = PLAT
LOCATION OF EASEMENTS OR RIGHT-OF-WAY OF
68.
PC = POINT OF CURVATURE
RECORD, OTHER THAN THOSE ON RECORD PLAT, IS
69.
PCC = POINT OF COMPOUND CURVATURE
REQUIRED, THIS INFORMATION MUST BE
70.
PCP = PERMANENT CONTROL POINT
FURNISHED TO THE SURVEYOR AND MAPPER.
71,
PG = PAGE
128. IF APPLICABLE, FENCES SHOWN MEANDER ON OR
72.
PI = POINT OF INTERSECTION
OFF LINES (APPROXIMATE LOCATION ONLY)
73.
PK&D = PARKER KALON NAIL AND DISC
129. ARCHITECTURAL FEATURES, SUCH AS FURRING
74.
PLS = PROFESSIONAL LAND SURVEYOR
STRIPS, SIDING, CORNICES, STUCCO, ETC., OUTSIDE
75.
POB = POINT OF BEGINNING
THE LINE OF THE STRUCTURE HAVE BEEN TAKEN
76.
POC= POINT OFCOMMENCEMENT
INTO ACCOUNT WHEN GIVING TIES FROM THE
77.
PP = POWER POLE
STRUCTURE TO THE LOT LINES.
78.
PRC = POINT OF REVERSE CURVE
130. ATTENTION IS DIRECTED TO THE FACT THAT THIS
79.
PRM =PERMANENT REFERENCE
MONUMENT
SURVEY MAY HAVE BEEN REDUCED OR ENLARGED IN
80.
PSM=PROFESSIONAL SURVEYOR AND
SIZE DUE TO REPRODUCTION. THIS SHOULD BE TAKEN
MAPPER
INTO CONSIDERATION WHEN OBTAINING SCALED
81.
PU & DE = PUBLIC UTILITY & DRAINAGE
DATA.
EASEMENT
82.
PUE= PUBLIC UTILITY EASEMENT
VEY
PAGE 2 OF 3
NOT FOR FENCE CONSTRUCTION
NOT FOR CONSTRUCTION
NOT FOR DESIGN
PHOTO PAGE
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F.L.A. SURVEYS CORP.
PROFESSIONAL LAND SURVEYORS & MAPPERS - LB 6569
JDRAWN BY: LFd (PARTY CHIEF: IN/A
3SR4 PROGRESS AVE.. SUTTE 10'1
NAPLF.S. FLORIDA 34104
239-403-1606 FAX403-8600
9220 BONPIA BEACH ROAD. STE- 2M
BONrrA 5PR[NGS, FLOR117A 34133
239403-1600 FAX 403-8600
REVISIONS
EXHIBIT "B"
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