HEX Minutes 10/12/2023October 12, 2023
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TRANSCRIPT OF THE MEETING OF THE
COLLIER COUNTY HEARING EXAMINER
Naples, Florida
October 12, 2023
LET IT BE REMEMBERED that the Collier County Hearing Examiner, in and for the County of Collier,
having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION at 2800 North
Horseshoe Drive, Room 609/610, Naples, Florida, with the following people present:
HEARING EXAMINER ANDREW DICKMAN
ALSO PRESENT:
Michael Bosi, Planning and Zoning Director
Raymond V. Bellows, Zoning Manager
John Kelly, Senior Planner
Ailyn Padron, Management Analyst I
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P R O C E E D I N G S
HEARING EXAMINER DICKMAN: Excellent. Good morning, everyone. Today is
October 12th, 2023.
Let's stand for the Pledge of Allegiance.
(The Pledge of Allegiance was recited in unison.)
HEARING EXAMINER DICKMAN: Okay. My name is Andrew Dickman, and this is
the Hearing Examiner meeting. Under the code of ordinances, I am an attorney in good standing
with the Florida Bar. I was retained by the Board of County Commissioners. I am not a county
employee. I was hired specifically to execute the mission and codes and procedures under the
Hearing Examiner section in the codes.
I am very familiar with land-use law, environmental law, zoning law, comprehensive
planning. I've been doing that for over 20 years.
The purpose of this meeting is for me to hear evidence presented with regard to the
advertised petitions that are before us. This is a quasi-judicial hearing which means that in a
minute I'll disclose any ex parte communications that I may have had outside of this forum. I'll
also ask the court reporter to administer the oath to anyone that's going to testify today.
After this meeting's over with, I have 30 days to render a written decision, and at the same
time, I cannot do any other work, investigation, research, I can't talk to other people outside of this
forum. The nature of a quasi-judicial hearing is due process and fundamental fairness.
So the speakers here today, whoever's going to speak, what I want you to know is that it's
more important for me to get the information that you want to convey to me than it is for you to
worry about, you know, public speaking, because this is just -- just relax. This is a small forum. I
want to get the information from you. As I said, I can't call you up tomorrow or the day after and
say, "What did you mean by this?" and have a conversation. So just take a deep breath, relax.
These are informal proceedings, and we'll get through this in an efficient manner.
The way that we handle these meetings is the county, on my right, whoever is the planner
that is in charge of writing up the staff report, will come up to the podium here to my far right and
present the plans -- or present the petition, any analysis and any recommendations or conditions
associated with it.
Then the petitioner or the petitioner's representative will use the podium over here by
Madam Court Reporter and present their case in chief.
Then I will open it up for public comment. We have both in-person and online, a hybrid
meeting, for people to participate -- public participation, and if anybody is here to speak, you need
to fill out a speaker card and hand it over to this young lady over here.
And then what I'll do is allow for a little time for rebuttal, if necessary, if something comes
up during the public speaking. Then I'll give the petitioner's representative a chance for -- to rebut
those issues. And then we'll close the public hearing, and we'll have a little dialogue, and we'll go
from there.
So if you have phones on, turn them off. If you want to have a conversation, do it out in
the hallway. Try to speak clearly so the court reporter can capture everything that is being said
here today. I have to suppress my southern accent, my cracker accent, for her specifically, which
isn't easy. Speak slower.
And with that, I guess what we'll do is anybody who's going to speak here today, stand,
raise your right hand, and the court reporter will administer the oath.
THE COURT REPORTER: Do you swear or affirm the testimony you will give will be
the truth, the whole truth, and nothing but the truth?
(The speakers were duly sworn and indicated in the affirmative.)
HEARING EXAMINER DICKMAN: All right. Awesome. We have two items on the
agenda today. Are there any changes to the agenda?
MR. BELLOWS: For the record, Ray Bellows. There are no changes other than I have a
reminder that both Items A and B are companion items, and they'll be one presentation.
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HEARING EXAMINER DICKMAN: Companion items. One presentation. Okay.
Very good.
***All right. So let's have -- let's have the presentation for Items 3A and 3B. The
petitioner -- or I guess we'll start with John.
Good morning, John.
MR. KELLY: Good morning, Mr. Dickman.
And in your -- in your start to the program, you forgot to mention y'all spoken here.
So -- okay. Before you is Agenda Item 3A, which is VA-PL20230007656, and Agenda
Item 3B is BD-PL20220004574.
With respect to the -- let's see here. With respect to the variance, I do have one correction
to read into the record, and that is that the wrong LDC citation was used. Instead of 5.03.06.E.6, it
should have been 5.03.06.E.5.
HEARING EXAMINER DICKMAN: Got it. Thank you. Is that in multiple places in
the staff report, or do I just --
MR. KELLY: It's in the title.
HEARING EXAMINER DICKMAN: I got it, yep. Thank you.
MR. KELLY: Okay. So this is a request for the Hearing Examiner to approve both a
variance from Section 5.03.06.E.5 of the Collier County Land Development Code to reduce the
required side-yard setback from 15 feet to 4 feet on the east side and to 11 feet on the west side for
a lot with 77 plus-or-minus feet of water frontage, and for a 6-foot boat dock extension over the
maximum permitted protrusion of 20 feet for waterways greater than 100 feet in width to allow a
boat-docking facility that will protrude a total of 26 feet into a waterway that is 358 plus-or-minus
feet wide pursuant to LDC Section 5.03.06.E.1 of the LDC for the benefit of the subject property
which comprises 0.21 acres located at 33 Pelican Street West, also known as Lot 78, Isles of Capri
No. 1, in Section 31, Township 51 South, Range 26 East, Collier County, Florida, together with
that land lying north of said Lot 78 to the mean high tide line 150 feet MSL in Government Lot 9 in
Section 32, Township 51 South, Range 26 East, Collier County, Florida. The property's located
within a Residential Single Family 4 zoning district.
Public notice requirements for the variance are -- per Section 5 -- I'm sorry -- per
Section 10.03.06.F.2, and the boat dock extension per LDC Section 10.03.06.H.
The agent letter to property owners within 150 feet was sent by the applicant's agent on
August 22, 2023, the property owner notification letter newspaper ad were satisfied by the county
on September 22, 2023, and the public hearing sign was posted by me on September 26th, 2023.
The variance application was reviewed by staff based upon the criteria contained within
LDC Section 9.04.03, a through h, with the findings stated within the staff report.
The boat dock extension was reviewed based upon review criteria contained within LDC
Section 5.03.06.H. Of the primary criteria, it satisfied five of five. Of the secondary criteria, it
satisfies four of six, with the sixth being not applicable. It's the Manatee Protection Plan. And
both the variance and the boat dock extension have been found to be consistent with the Growth
Management Plan and the Land Development Code.
No public comment has been received by me, and it's staff's recommendation that you
approve both the variance and the boat dock extension in accordance with the plans contained
within Attachment A of the individual staff reports. Approval of the boat dock extension is
dependent upon the approval of the companion variance.
And that concludes staff's presentation.
HEARING EXAMINER DICKMAN: Thank you, John.
MR. KELLY: Let me please add I did add a document to the record, as Nick Pearson has
changed firms. So we did get an affidavit of authorization, and that's to be added to the record at
this time.
HEARING EXAMINER DICKMAN: All right. Thank you.
MR. KELLY: Nick.
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HEARING EXAMINER DICKMAN: Come on up, Nick. Career change.
MR. PEARSON: Yes, sir.
HEARING EXAMINER DICKMAN: All right.
MR. PEARSON: All right. For the record, again, my name is Nick Pearson, formerly of
Turrell, Hall & Associates. Now with Bayshore Marine Consulting.
So just to begin the presentation, this is our cover page. This shows roughly where the
property is. It's located in Isles of Capri on the southwest, sort of, general area of the island on one
of the inland bays.
Next slide, please.
If you can see the red circle there, it's a little bit faint on the slide, but that shows the
precise area of the property. As you can see, it's sort of located in -- not technically a corner by
what the county would consider, but for our purposes it, essentially, is in a sort of corner of the
island.
HEARING EXAMINER DICKMAN: Yeah. It's a very snug little spot there. It looks
like there's a lot of accretion; is that what it is? Like, sand buildup?
MR. PEARSON: Yes, and that's part of what we'll get to.
HEARING EXAMINER DICKMAN: Okay. Sorry.
MR. PEARSON: No, no. It's fine. I think it's well known Capri was really a series of
islands, historically, and it was basically created by dredging and filling. I think some of the other
slides will show it better, but this particular location was kind of partially dredged, so the water
depths fluctuate pretty substantially depending on kind of where you are looking.
HEARING EXAMINER DICKMAN: Yep.
MR. PEARSON: Next slide, please.
So this is the existing conditions. As you can see, the seawall is, like I said, on a corner,
and then there is one small segment of it that kind of bends around the corner on the eastern side.
So something I want to point out here about the riparian lines. The east riparian line has
kind of always has -- it's basically how it always has been, that is it comes perpendicular off of the
seawall. The more western riparian line is somewhat more problematic, and I say that because,
historically, this dock has been, it's my impression, constructed within the normal bounds of Collier
County's Land Development Code. That is, I'm not aware of any other zoning requirement that
was needed to build that dock that you see there.
The shoreline directly to the west of the west riparian line --
HEARING EXAMINER DICKMAN: Right here?
MR. PEARSON: -- is not stabilized. There's no mangroves there. It's, essentially, a
small sand beach.
HEARING EXAMINER DICKMAN: Is it associated with that property or --
MR. PEARSON: Yes. Well, it's that one and the one next to it.
HEARING EXAMINER DICKMAN: This one.
MR. PEARSON: So the west neighbor has only about two feet of riparian frontage.
HEARING EXAMINER DICKMAN: Gotcha.
MR. PEARSON: So I don't want to call it unbuildable, but it, effectively, is with the
frontage that they have.
HEARING EXAMINER DICKMAN: Yeah, that's what I was getting at, I was looking at,
because all of these -- I think there's four of them -- they have to get through the mangroves, but
then this looks, like, very shallow --
MR. PEARSON: Yes.
HEARING EXAMINER DICKMAN: -- you know, where the sand is washed up, and
they're way out into the -- into waterway.
MR. PEARSON: Parts of it are out of the water at low tide.
HEARING EXAMINER DICKMAN: All right.
MR. PEARSON: But what I was going to get at, by bringing up that riparian line, is that,
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historically, the riparian line was about a foot or two further to the north I think as a result of, kind
of, the shoreline changing over time.
So in the interim of when that original dock was built, the riparian line has shifted enough
so that the existing structure is now slightly encroaching on the 15-foot side setback.
HEARING EXAMINER DICKMAN: Okay. So let's talk about that for a minute.
Because it's my understanding that riparian lines are, essentially -- they're an extension of your side
yard -- side yard property lines; is that right?
MR. PEARSON: Somewhat.
HEARING EXAMINER DICKMAN: Somewhat. So this one is your classic one --
MR. PEARSON: Yes.
HEARING EXAMINER DICKMAN: -- where it just goes straight out?
MR. PEARSON: Yes.
HEARING EXAMINER DICKMAN: This one, you know, because it meets up with
other riparian property lines that are not, you know, perpendicular to the -- I mean, so you're saying
this particular one, there's an encroachment in here --
MR. PEARSON: It's --
HEARING EXAMINER DICKMAN: -- because of a change on this riparian line?
MR. PEARSON: Yes.
HEARING EXAMINER DICKMAN: Okay.
MR. PEARSON: So I'm not a surveyor, I want to disclaim. My understanding, though,
in working with surveys and incorporating them into plans like this is that many times riparian
lines do function as an extension of the property line. In certain cases, like when you have a
nonlinear shoreline, though, they can come out at different angles.
HEARING EXAMINER DICKMAN: Right.
MR. PEARSON: There are several criteria that go into it. I know it's -- my
understanding is that it's supposed to go from the extension of the property line to -- wherever that
might be to the nearest point of line of deepwater.
And there is a degree of subjectivity that comes along with this as well. So one surveyor
might actually not depict the survey line exactly like another. In this case, we had had several
surveys over the years and felt the survey -- the riparian lines were not all the same.
HEARING EXAMINER DICKMAN: Okay.
MR. PEARSON: So that's why I say it appears to me that, because of the shoreline shift,
that the riparian line also shifted a small amount.
HEARING EXAMINER DICKMAN: Got it.
MR. PEARSON: Next slide, please.
So this is what we are proposing to do. The access walkway that you can see coming off
of the seawall is more or less what is there already. We would like to replace what's existing,
basically, in the same footprint of what was there originally. The changes come in where the sort
of almost triangular terminal platform is.
So we would like to add a flair to give us a better angle of ingress/egress to our proposed
lift.
HEARING EXAMINER DICKMAN: And this particular approach, in your opinion, does
that help this neighbor -- this particular neighbor?
MR. PEARSON: This is -- it is a difficulty with this neighbor.
HEARING EXAMINER DICKMAN: Yeah.
MR. PEARSON: As you can see, I -- my understanding is that his lot is 60 feet wide,
which would require him to have a 15-foot side setback under normal circumstances. As you can
see, I only have it about 6. So that, I would think, is a legally nonconforming structure.
HEARING EXAMINER DICKMAN: All right.
MR. PEARSON: The lines of ingress/egress that I have on that, on this
configuration -- they're not shown, but I have drawn them out, and it appears that we can clear their
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dock without much issue.
HEARING EXAMINER DICKMAN: But I think it's easier to clear the dock with this
particular arrangement.
MR. PEARSON: Absolutely.
HEARING EXAMINER DICKMAN: I mean, it's odd-looking with the little triangle
there, but I get it.
MR. PEARSON: Exactly. And I will -- I will go further into that in some of the other
slides. But, essentially, we're kind of bound to this design because of being in a corner, like I
mentioned earlier, having that shallow water to the north, and then also having this neighbor with a
nonconforming dock.
It kind of limits us, essentially, to only this angle, there really is no other way without
utilizing some kind of, you know, like, an elevator lift, which, in my opinion, is inferior to this
design.
And I guess to further with the language in the petition is you can see we're proposing four
feet on the east side, 11 feet on the west side setback, and then the protrusion would be to 39 feet.
HEARING EXAMINER DICKMAN: Okay.
MR. PEARSON: So 19 feet beyond the normally allowed 20.
Next slide, please.
So this kind of shows the general overview of the area. I know we're not supposed to use
precedence to, you know, depict a need, but it is interesting, most of the docks in this area are quite
a bit further out into the water than 20 feet.
HEARING EXAMINER DICKMAN: Yeah. Precedence is not the issue here, but what
I'm focused on is the uniqueness of this -- it's almost a cove.
MR. PEARSON: Yes.
HEARING EXAMINER DICKMAN: And you can see where this -- you know, either
this is murky or it's shallow.
MR. PEARSON: It's very shallow.
HEARING EXAMINER DICKMAN: And there's very little for these two. You know,
they kind of have to time the tide or be very tricky about getting out. I think it's interesting that
they had -- they go all the way out here just to get into navigable water. But it is clearly a tricky,
tricky little corner.
And I guess, you know, you see the seawalls done on this side, but it turns into more of a
vegetated shoreline on this side, right? Am I wrong?
MR. PEARSON: No, that's correct. And I mentioned earlier about some of the other
aerials show the, kind of, dredging a little better.
HEARING EXAMINER DICKMAN: Yeah.
MR. PEARSON: This is one of those.
HEARING EXAMINER DICKMAN: Yeah. So these two folks -- okay. So these two
folks have that little sliver of access to the water to maybe launch a kayak or go swimming.
MR. PEARSON: Yes.
HEARING EXAMINER DICKMAN: Gotcha.
MR. PEARSON: Exactly.
HEARING EXAMINER DICKMAN: All right.
MR. PEARSON: Next slide, please.
Like every petition, a submerged resource survey was conducted here. We did find
seagrasses -- shoal grass, to be exact -- on basically what that sandbar is. It's somewhat thin, not
a -- not what I would call a perfect meadow of grass, but it is still present. It does cut off before
we kind of get to the boatlift that we're proposing. So we did provide compliance with the
applicable code, Chapter 5.03.06.
HEARING EXAMINER DICKMAN: Well, so these piers are literally out of the water,
because you can see the shade on the sand, right?
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MR. PEARSON: They are --
HEARING EXAMINER DICKMAN: The shadow on them.
MR. PEARSON: They are out of water for a portion of the tide at least. I have seen
them fully submerged but, yes, it is very shallow pretty much at all times.
HEARING EXAMINER DICKMAN: Yeah. I gotcha. Okay.
MR. PEARSON: Next slide, please.
HEARING EXAMINER DICKMAN: No pictures of you diving out there? Next time,
right?
MR. PEARSON: There's probably a few, but I did not submit them.
As you can see, we've met all five of the primary criteria and four of the six criteria, the
one that we've missed being the vessel-to-shoreline length ratio. With that 34 and then the jet ski,
it puts us over the limit, which, I believe, was -- the shoreline was 77 feet, so half of that would
be --
HEARING EXAMINER DICKMAN: Come on; you can do the math.
MR. PEARSON: Thirty-eight and a half, I think.
HEARING EXAMINER DICKMAN: A plus.
MR. PEARSON: Putting me on the spot.
And, of course, the Manatee Protection Plan criteria is not applicable, as John mentioned.
HEARING EXAMINER DICKMAN: Okay.
MR. PEARSON: Next slide, please.
And that concludes my presentation. And if you want, that, I think, provides a little bit
better of a picture that shows the general area there.
HEARING EXAMINER DICKMAN: So just out of curiosity, I mean, so what's
the -- when you're out here, is the water quality -- you said there is some grass here. Is it growing,
or is it fading -- is it dying? I mean, is there any oyster? Is there any -- I'm just -- this is kind of
off topic, but I'm just curious about the water quality.
MR. PEARSON: So I have dove this site actually multiple times over the years. The
first time I dove it was probably five years ago, and I did not see anything out there. The last time
we dove it, it was probably a couple years later; I didn't see anything again. And then this most
recent time there was some thin shoal grass.
HEARING EXAMINER DICKMAN: Okay.
MR. PEARSON: You know, grass does tend to be ephemeral, especially around our
areas. You see it pop up; you see it go away. You know, it goes dormant during the winter as
well. So if you really wanted to be scientific about it, I think you'd probably be better off doing it
at the same time of year every year and then kind of getting a track record.
HEARING EXAMINER DICKMAN: Right.
MR. PEARSON: You know, has it just come back just because this one dive? Hard to
say, but potentially.
HEARING EXAMINER DICKMAN: Okay. Just curious.
Anything else?
MR. PEARSON: That, I think, is pretty much it.
HEARING EXAMINER DICKMAN: Okay. John, you're up, so it means you want to
talk.
MR. KELLY: Yes. As a result of the seagrasses, there were conditions of approval, and
that is it must meet -- the dock must meet the following design conditions of approval pursuant to
LDC Section 5.03.06.J.3. A, the dock shall be at least 2.2 feet NAVD; B, the terminal platform
area of the dock shall not exceed 160 square feet; C, the access dock shall not exceed a width of
four feet; and, D, the access dock and terminal platform shall be sited to impact the smallest area of
the seagrass beds possible. Those were provided to us by our environmental staff.
HEARING EXAMINER DICKMAN: Perfect. Thank you.
Do you agree with those?
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MR. PEARSON: Yes. I was just going to add one thing, actually, that I didn't bring up
earlier is that this location is part of the Rookery Bay Aquatic Preserve.
HEARING EXAMINER DICKMAN: I was wondering about that.
MR. PEARSON: It essentially -- it effectively doesn't allow you to dredge at all.
HEARING EXAMINER DICKMAN: So the ST overlay?
MR. PEARSON: It's very difficult to permit dredging here, and it is in the ST overlay
with the county as well. So, yes, very difficult to get dredging allowed here.
HEARING EXAMINER DICKMAN: No dredging, okay.
MR. PEARSON: So --
HEARING EXAMINER DICKMAN: Why don't we open it up to public comment, if we
have any.
MS. PADRON: There are no registered speakers at this time.
HEARING EXAMINER DICKMAN: I told Heather to register. Just kidding.
Something's going on here. There's something afoot.
Any other comments from the county?
That was a very nice presentation, by the way, and I wish you well with your new
endeavors.
MR. PEARSON: Thank you.
HEARING EXAMINER DICKMAN: You know, change is always a good thing,
professionally, sometimes, you know, if you -- for whatever reason, but I'm sure you'll do well.
If no one else has any questions or -- we'll close the public comment. I don't have any
questions. I'll get a decision or decisions out -- I have to do two -- on these as quickly as I can,
okay.
MR. PEARSON: Appreciate it.
HEARING EXAMINER DICKMAN: All right. No problem. Do we have anything
else to discuss before I adjourn?
MR. BOSI: Nothing else from the county.
HEARING EXAMINER DICKMAN: And the Bears are doing better.
MR. BOSI: They won one.
MR. BELLOWS: Let's have two.
HEARING EXAMINER DICKMAN: The Dolphins aren't doing too bad.
MR. BOSI: No, they're not.
HEARING EXAMINER DICKMAN: Okay. Well, I thank everybody for setting up the
room, and I appreciate everyone's support. And have a wonderful day, have a wonderful weekend.
It looks like we're going to have some rain but then some cooler weather. That should be nice.
MR. BOSI: All weather's coming.
HEARING EXAMINER DICKMAN: All right. We are adjourned.
*******
October 12, 2023
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There being no further business for the good of the County, the meeting was adjourned by order of the
Hearing Examiner at 9:32 a.m.
COLLIER COUNTY HEARING EXAMINER
_______________________________________
ANDREW DICKMAN, HEARING EXAMINER
These minutes approved by the Hearing Examiner on _________, as presented _______ or as corrected ________.
TRANSCRIPT PREPARED ON BEHALF OF FORT MYERS COURT REPORTING, BY TERRI L.
LEWIS, REGISTERED PROFESSIONAL REPORTER, FPR-C, AND NOTARY PUBLIC.
410/27/23