HEX Final Decision 2023-30HEX NO. 2023-30
HEARING EXAMINER DECISION
DATE OF HEARING.
August 24, 2023
PETITION.
Petition No. BDE-PL20210002028 - Sunrise Cay II Dock Facility - Request for a nine -foot
boat dock extension from the maximum permitted protrusion of 20 feet for waterways
greater than 100 feet in width to allow construction of a private multi -family boat docking
facility protruding a total of 29 feet into a waterway that is 149 feet wide. The subject
property is in Sunrise Cay Phase II in Port of the Islands, Section 9, Township 52 South,
Range 28 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
Petitioner is seeking to upgrade existing docks with floating lifts that will require a 9-foot extension
past the 20-foot permitted limit.
STAFF RECOMMENDATION.
The applicant proposes to relocate the six slips on the eastern shoreline to the southern shoreline
and to reconfigure the existing 36 angled slips so that all 42 slips will be shore perpendicular. The
proposed reconfiguration includes installing 42 floating boatlifts within each slip to allow the
vessels to be stored out of the water on the float. This will help protect the hull from marine growth
and other potential damages associated with keeping a boat in the water. As proposed, the floating
lifts each measure 26 feet; the total protrusion requested is 29 feet as measured from the existing
seawall/MHWL, which is the most restrictive point.
FINDINGS.
The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(4) 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.
Page 1 of 6
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 made at the public hearing.
6. This is a concurrent land use application for an Insubstantial Change to SDP-89-229, SDPI-
PL20220008960, and is being reviewed to accommodate the dock facility changes proposed
within this BDE request.
7. The County's Land Development Section 5.03.06.H. lists the criteria for dock facility
extensions. The Hearing Examiner may approve, approve with conditions, or deny a boat dock
extension request if it is determined that at least four (4) of the five (5) primary criteria, and at
least four (4) of the six (6) secondary criteria have been met.'
Primary Criteria:
Whether the number of dock facilities and/or boat slips proposed is appropriate in relation
to the waterfront length, location, upland land use and zoning of the subject property.
Consideration should be made of property on unbridged barrier islands, where vessels are
the primary means of transportation to and from the property. (The number should be
appropriate; typical single-family use should be no more than two slips; typical multi-
family use should be one slip per dwelling unit; in the case of unbridged barrier island
docks, additional slips may be appropriate.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEENMET. Private docks are listed as a permitted use within the RMF-16 zoning district.
The total water frontage of the subject property is 975 feet. The subject development has
42 dwelling units, and the total number of existing and proposed slips are 42. Both the
original and amended Settlement Agreements allow for 42 boat slips.
2. Whether the water depth at the proposed site is so shallow that a vessel of the general
length, type and draft as that described in the petitioner's application is unable to launch or
moor at mean low tide (MLT). (The petitioner's application and survey should establish
that the water depth is too shallow to allow launching and mooring of the vessel(s)
described without an extension.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
NOT BEEN MET. Water depths are not the driving factor for the requested BDE. The
driving factor is the configuration of the slips being perpendicular to the seawall [and] is
the reason for the BDE petition request. The justification of the proposed slip design is to
create a safe design to allow all 42 slips [to] ingress/egress their slip with less of a chance
to create a chance of conflicting with their neighboring slip. A shore parallel design would
reduce the overall protrusion but creates a navigational issue when 42 slips/vessels bow
to stern laying along the shoreline with little to no room for navigation.
'The Hearing Examiner's findings are italicized.
Page 2 of 6
3. Whether the proposed dock facility may have an adverse impact on navigation within an
adjacent marked or charted navigable channel. (The facility should not intrude into any
marked or charted navigable channel thus impeding vessel traffic in the channel.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEENMET. The subject canal measures 149 feet, MHWL to MHWL, and no navigational
markers indicate an exact thread of travel. The proposed dock facility satisfies setback
requirements and allows sufficient space for docks on the opposite shore.
4. Whether the proposed dock facility protrudes no more than 25 percent of the width of the
waterway, and whether a minimum of 50 percent of the waterway width between dock
facilities on either side is maintained for navigability. (The facility should maintain the
required percentages.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEENMET. The subject canal is 149 feet wide, MHWL to MHWL, and the proposed dock
facility will protrude 29 feet into said waterway; the actual protrusion will account for
19.46 percent of the waterway. The Zoning Atlas reveals no approved BDEs on the
opposite shore; as such, it is believed that their protrusion does not exceed 20 feet or 13.42
percent of the waterway, 67.12 percent of the waterway will remain open for navigation
should the proposed BDE be approved.
5. Whether the proposed location and design of the dock facility is such that the facility would
not interfere with the use of neighboring docks. (The facility should not interfere with the
use of legally permitted neighboring docks.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The proposed dock facility will provide more than the required 1 S foot
setbacks from both property/riparian lines. The dock design and location have been
designed to be located within the required setbacks, provide safe access with a vessel and
not interfere with any future neighboring dock facilities that may be constructed. The
subject dock facility accounts for the entire southern property line of the subject property.
The property includes the side end of the canal; no additional slips can be added without
obtaining special permissions that would trigger the public hearing process. Additionally,
property owners located across the canal are able to engage the Boat Dock Extension
process in the event they desire to seek permission for a dock facility exceeding those
allowed by right, 37.12 percent of the canal will be open for navigation.
Secondary Criteria:
1. Whether there are special conditions not involving water depth, related to the subject
property or waterway, which justify the proposed dimensions and location of the proposed
dock facility. (There must be at least one special condition related to the property; these
may include type of shoreline reinforcement, shoreline configuration, mangrove growth,
or seagrass beds.)
Page 3 of 6
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The applicable special condition is the fact that the subject property is a
multi family development for which both the LDC and the Manatee Protection Plan (MPP)
allow one slip per dwelling unit; the total number of dwelling units is 42. The applicant
contends that insufficient shoreline length is available to construct sore parallel docks with
less protrusion, thus making shore perpendicular the preferred design. The applicant's
methodology is valid and this criterion has been satisfied.
2. Whether the proposed dock facility would allow reasonable, safe access to the vessel for
loading/unloading and routine maintenance, without the use of excessive deck area not
directly related to these functions. (The facility should not use excessive deck area.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The main reason for the proposed project is to reconfigure the existing slip
layout and locations as well as to install new floating boatlifts within each slip. These
floating boatlifts will provide additional dock surface area for each slip owner, providing
better access to their vessel and allowing for routine maintenance like hull cleaning. The
proposed design will also improve the existing access to each slip/vessel without using
excessive decking or constructing new docks.
3. For single-family dock facilities, whether the length of the vessel, or vessels in
combination, described by the petitioner, exceeds 50 percent of the subject property's
linear waterfront footage. (The applicable maximum percentage should be maintained.)
The record evidence and testimony from the public hearing reflects that the criterion is
NOT APPLICABLE. The proposed docking facility is a multi family docking facility.
4. Whether the proposed facility would have a major impact on the waterfront view of
neighboring property owners. (The facility should not have a major impact on the view of
a neighboring property owner.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The proposed project consists of just reconfiguring and relocating the
existing 42 slips already authorized for the subject property. Additional decking will be
added; however, there should not be any new impacts to any of the surrounding properties
nor their existing view of the subject waterway.
5. Whether seagrass beds will be impacted by the proposed dock facility. (If seagrass beds
are present, compliance with subsection 5.03.06.J of the LDC must be demonstrated.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. No seagrass beds are present on the property or the neighboring properties
within 200 feet of the existing dock structure.
Page 4 of 6
6. Whether the proposed dock facility is subject to the manatee protection requirements of
subsection 5.03.06(E)(11) of this Code. (If applicable, compliance with section
5.03.06(E)(11) must be demonstrated.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The subject property is subject to the Collier County MPP. All the
requirements within the MPP have been meet and there will be installed new Manatee
Awareness and Educational signs for public awareness. Additionally, the project will not
increase the total slip count of 2 slips. A manatee consistency determination has been
completed for the proposed multi -slip docking facility in accordance with LDC Section
5.03.06.E.I ], PL20230007438. The Manatee Protection Plan (MPP) review revealed that
the proposed docking facility meets the "Preferred" status and is consistent with the
Collier County MPP.
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 5.03.06.H
of the Land Development Code to approve the Petition. The Petition meets 4 out of 5 of the
primary criteria and 5 out of 6 secondary criteria, with one criterion being not applicable.
DECISION.
The Hearing Examiner hereby APPROVES Petition Number BDE-PL20210002028, filed by Jeff
Rogers of Turrell, Hall & Associates, Inc. representing Sunrise Cay Commons Association, Inc.,
Sunrise Cay II, with respect to the property described as 301 Sunrise, within Sunrise Cay Phase II
in Port of the Islands, in Section 9, Township 52 South, Range 28 East, Collier County, Florida,
for the following:
• A nine -foot boat dock extension from the maximum permitted protrusion of 20 feet for
waterways greater than 100 feet in width to allow the construction of a private multifamily
boat docking facility with 42 slips protruding up to 29 feet into a waterway that is 149±
feet wide.
Said changes are fully described in the Proposed Dock Plans attached as Exhibit "A" and are
subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A — Proposed Dock Plans
Page 5 of 6
LEGAL DESCRIPTION.
301 Sunrise, within Sunrise Cay Phase II in Port of the Islands, in Section 9, Township 52 South,
Range 28 East, Collier County, Florida
CONDITIONS.
All other applicable state or federal permits must be obtained before commencement of the
development.
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.
September 22, 2023
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 6 of 6
EXHIBIT "A"
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