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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 EXHIBIT "A" I U a V) z z i' pq p q? 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(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 .1 ; 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" •-. '� � Lc—s c�47{.:i. of i"� � • 4•a .7. Y-t T ' . •, j' .. � ' � ie-eA- �_ 1. �Pr2 Z� e7 fLTFt v J a '6T Grp vLN �rfZ N,, ,}t .i �t� o&.oz, ire r^41 CQavr ub ToDfsAa . , ifNQ r,�oRk� aJ G-)"fjl4 ❑ suss fea- - EXHIBIT "B"