HEX Final Decision 2023-27HEX NO. 2023-27
HEARING EXAMINER DECISION
DATE OF HEARING.
August 10, 2023
PETTTInN
Petition No. VA-PL20220007504 —14690 and 14694 Beaufort Circle — Request for an after -
the -fact variance from LDC 3.05.07.H.l.h.iii to allow a decorative wall built closer to a
preserve than allowed by reducing the required preserve setback from five feet to zero feet
on a f0.27-and-f0.38-acre property, respectively, located at 14690 and 14694 Beaufort
Circle, also known as Lots 377 and 378, Indigo Preserve subdivision, in Section 34, Township
48 South, Range 26 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
This petition is applying for a variance for a wall in their backyard constructed too close to a
preserve boundary (see photo right). During the variance review, it was discovered that the wall
extended one foot into the neighbor's property (14694 Beaufort), also too close to the preserve
boundary. This petition addresses separating the wall from the preserve for both properties.
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. Todd Allen spoke at the public hearing on behalf of Indigo Lakes Master
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Association. He stated that the fence is a is a violation of the declaration of covenants,
conditions and restrictions of the association and the current owner has not sought any
accommodation from the board of directors for the installation of the subject fence. Mr. Allen
raised another issue that at the backyard of the property there is an irrigation easement that is
dedicated to the association and there are irrigation lines that go through there and the
Association fears that the fence would interfere with that. One phone call was received
regarding this petition from Karla Osete, 14686 Beaufort Circle, who supports the petition.
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 reason for
building the wall was to retain the soil in his yard that was eroding into the preserve when
there was heavy rainfall. When the retaining wall was constructed, Mr. Smith placed it in
line with the white vinyl fence on the neighboring property and inside of the chain link
fence, which he thought represented his rear property line, not aware that LDC
§3.05.07.H.I.h.iii requires a five-foot separation from any preserve boundary for a
decorative wall. Similarly, the wall was constructed to end just before the faux wrought
iron fence between 14690 and 14694 Beaufort, which Mr. Smith believed to be the property
line.
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 topography of
the backyard prior to the wall being built and the yard backfill when it rains could display
why the homeowner believed he was right in placing the wall where he did: continuing the
line of his neighbor's fence, staying inside of the chain link fence along the rear property
line, and ending before the wrought iron fence bordering his and his neighbor's 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 the LDC would require the applicants to either move the wall five feet
back from his rear property line and get rid of the excess earth that is currently backfilling
the wall for the last five feet of the property or remove the wall entirely and regrade the
earth to its original condition which would require removal of a large volume of soil.
'The Hearing Examiner's findings are italicized.
Page 2 of 6
Removal of the wall and dirt will likely do more harm than good, particularly to the
preserve.
The current property owners inherited this issue from the former owner, stating that the
backyard was what they most liked when viewing the house. A literal interpretation would
significantly alter the appearance, reduce the backyard's usability, cause significant
disturbance to the property and likely a neighbor's property during remediation.
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 once the work has
been completed, and the variance, if granted, would result in no further work being
performed and, therefore, be the minimum variance possible. The retaining wall may
benefit the preserve by stopping additional earth erosion into the preserve. The flatter
backyard promotes a safer yard to recreate in. However, a four foot drop-off is now at the
back of the yard.
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 LDC § 9.04.02
allows relief from any dimensional development standard through the variance process.
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 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 intent of LDC
§3.05.07.H. 1. h. iii is to minimize disturbance and intrusion to the preserve by creating a
space where wall construction can occur on a private person's property without having to
trespass into the preserve during construction. Removing the wall would likely do more
harm than good at this juncture. It appears that the wall was constructed from the inside
of the chain link fence on Mr. Smith's property, eliminating damage to the preserve during
construction. There was little, if any, damage that was done to the preserve during or since
construction.
The first complaint to Code Enforcement was made on June 17, 202Z a little over a year
ago. No further complaints have been made to Code Enforcement about the wall, erosion,
or water intrusion damage to abutting properties. While the past cannot be used to predict
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the future, based on its one plus years of existence, the wall does not seem detrimental to
the public welfare, particularly the abutting properties.
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 the wall and
accompanying backfill are both physically induced conditions. Prior to the existence of the
wall and backfill, soil could erode unchecked into the preserve. The wall now acts as a
barrier to soil intrusion into the preserve. There may be less soil intrusion into the preserve
than if the project had never been started. The property owner will be required to move or
remove the wall without a variance. Removing the wall would likely cause damage to the
preserve, more than allowing for the continued existence of the wall.
8. Will granting the Variance be consistent with the GMP?
The record evidence and testimony from the public hearing reflects the Growth
Management Plan (GMP) does not address individual variance requests related to
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 a retaining wall
into the setback required for separation from the preserve.
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 the Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-PL-20220007504, filed by Linda and
Dave Smith, representing Patrick Sinks and Janet Kloth-Sinks, and Reggie and Brandi Morgan
with respect to the property described as 14690 and 14694 Beaufort Circle in the Indigo Lakes
Planned Unit Development (PUD). The PUD has a single point of access from the west side of
Collier Boulevard, approximately 3,000 feet south of Immokalee Road. The property is in Section
34, Township 48 South, Range 26 East, in unincorporated Collier County, for the following:
• The petitioners request a variance from Land Development Code (LDC) Section
3.05.07.H.l.h.iii, which states that "decorative walls must be set back a minimum of five
feet from the boundary of preserves" to allow a retaining wall to remain where it was
constructed parallel to and just inside the applicants' property line which abuts a preserve
boundary.
Page 4 of 6
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.
14690 and 14694 Beaufort Circle in the Indigo Lakes Planned Unit Development (PUD). The PUD
has a single point of access from the west side of Collier Boulevard, approximately 3,000 feet
south of Immokalee Road. The property is in Section 34, Township 48 South, Range 26 East, in
unincorporated Collier County
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
2. This decision in no way authorizes the wall's permanent encroachment into the abutting
property. Any current encroachment across property lines is a temporary private agreement
between the current owners.
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.
Page 5 of 6
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 6 of 6
EXHIBIT "A"
MAP OF BOUNDARY S UR VE Y
PARCEL ID#: 51960000649
30' 15 0 30' ADDRESS: 14690 BEAUFORT CIRCLE
g �v NAME: SINKS
SCALE: 1" = 30'
Y
BEA UFOR T CIRCLE
(50' R.O.W.)
SET NAIL 85.00'
—2' CURB AND GUTTER
SET 5/8" IRON
ROD WITH CAP
PLS 5621
10' S.W.E
& P.U.E.
Z
7.7'
LOT 377 19.7'
10.7' cli
14.3'
4' ALUMINUM
f
FENCE 0.4' W.
o COVERED
1.3' 4 ENTRY
O
4.8 4.8' N
N
7.7'
CO
1 STORY RESIDENCE
LOT 376
m
OCCUPIED
13.21'
41
o
- COVERED
O
Z a
N LANAI S
.O. 8.7„506• _
Q
SCREEN 0'7
O
ENCLOSED
POOL AREA I�
�o f 10.0'
POOL
0.7'
SPA 9
7.7
0
0 9.35' � 24.3'
36.02' �v
WATER
F j METERS
:AN
SET 5/8" IRON
BOX
0
ROD WITH CAP
E
TELE
PLS 5621
BOX
7.7'
CONCRETE
PAD O
O
4' ALUMINUM O N
N
FENCE 11.5' I.E.
1.5' N. & 0.4' W.
SET 5/8" IRON N 89*5341 " W 85.00'
ROD WITH CAP L 4' MASONRY WALL
PLS 5621
0.5' N. & 0.2' E.
4' CHAIN LINK
FENCE 0.4' N.
a
Iaa IU v T 378
OCCUPIED
w Oiv
� r
U
Z p
O Q
U d
PAVER BRICK WALK 2.0' W.
0.7' WIDE 4' TALL
MASONRY WALL
1.0' E.
SOUTH FACE OF 0.7' WIDE,
4' TALL MASONRY WALL
OCCUPIES CORNER
4' CHAIN LINK
FENCE 0.2' S.
P.U.E. — PUBLIC UTILITY EASEMENT
C.U.E. - COUNTY UTILITY EASEMENT
S.W.E. - SIDEWALK EASEMENT
L.M.A. - LAKE MAINTENANCE ACCESS EASEMENT
D.E. - DRAINAGE EASEMENT
I.E. - IRRIGATION EASEMENT
Naples Land Surveys
BILL MACRIDES, P.L.S.
6101 Lancewood Way,
Naples, Florida 34116
OFFICE: 239-353-9300 *** Bill.MacridesPLS@gmail.com
CLIENT: STEVE SMITH
DESCRIPTION:
LOT 377,
INDIGO PRESERVE
AS RECORDED IN PLAT BOOK 40, PAGES 54-57,
AS SHOWN IN THE PUBLIC RECORDS IN THE COLLIER
COUNTY COURTHOUSE IN NAPLES, FLORIDA.
THIS SURVEY HAS BEEN PREPARED FOR:
STEVE SMITH
ON 11/18/03 UNDER MY DIRECTION AND TO THE BEST
OF MY KNOWLEDGE AND BELIEF IS A TRUE AND ACCURATE
DEPICATION OF THE HEREON DESCRIBED PARCEL OF,O,ND.
Cy
*V 21
_ * 0.
56 0� N
SS PEE Q
WILLIAM A MACRIDES, P.L.S. #5621 Q�E,.,,F
red Survey
THIS SURVEY IS NOT VALID UNLESS SIGNED AND EAL'Ed
WITH THE EMBOSSED RAISED SEAL OF A FLORIDA REGISTERED
PROFESSIONAL SURVEYOR AND MAPPER.
THIS IS NOT A CERTIFICATE OF TITLE, ZONING, OR FREEDOM
OF ENCUMBRANCES. THE ABSTRACT HAS NOT BEEN
REVIEWED AND OTHER EASEMENTS AND RESTRICTIONS MAY
APPLY TO THIS PARCEL, ALL OTHER EASEMENTS THAT EXIST
ARE REQUIRED TO BE PROVIDED TO THE SURVEYOR BY THE
CLIENT OR HIS OR HER AGENT PER FLORIDA STATUTE
61G17-6.003 (10) F.A.C.
REVISIONS:
11/19/03 — ADDED PROPOSED RESIDENCE
3/10/04 — ADDED FOUNDATION FB 94 PG 14
11/10/04 — FINAL SURVEY
05/22/23 — ADD SPOT SURVEY OF MASONRY WALL
FLOOD ZONE INFO: THE HEREON SHOWN RESIDENCE LIES
WITHIN FLOOD ZONE X PER F.I.R.M. 12021C — 0214 H,
DATED 5/16/2012
DRAWN BY: WAM
FIELD BOOK: BMFCS: 79 PAGE: 20
FILE NUMBER 03.284