HEX Final Decision 2023-38 HEX NO. 2023-38
HEARING EXAMINER DECISION
DATE OF HEARING.
November 9,2023
PETITION.
Petition No. VA-PL20230003394 — 1231 15th Street SW - Request for a 41.2-foot variance
from the Land Development Code Section 2.03.01.B.1.b.4 to reduce the required minimum
100 feet separation distance from the adjacent residence to the north to 59.8 feet for an
existing permitted accessory shelter for horses on the subject property described as the south
150 feet of Tract 10, Golden Gate Estates, Unit No. 193 subdivision, located at 1231 15th
Street SW, Naples, FL 34117 in Section 17, Township 49 South, Range 27 East, Collier
County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The Petitioner is requesting a variance to the current structure to house horses because it is less
than the minimum required separation distance to an adjacent residence of 100 feet.
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. There were no objections at the public hearing, however two objection letters
were submitted for this item. Joselin Banegas of 1221 15th Street SW objects to the variance
Page 1 of 6
due to the current location of the horse structure being less than twenty (20) feet away from
her property line. Ms. Banegas' counsel, Scott Fishman, Esq. of Glantz Law also submitted a
letter in support of her position of objection to the variance. Ms. Banegas attempted to appear
via Zoom but could not connect due to technical issues with her equipment. Jack Freund at
1240 17th Street SW submitted a letter of no objection to the variance request.
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.'
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 peculiar
location of the horse barn dates back over 30 years, when the original owners of the
property erected the barn for equine purposes. The horse barn measures 59.6' x 15',
allowing up to 5 horses, the legal limit allowed by code enforcement ordinances, and is
located on a legally conforming 150-foot-wide lot. The horse barn has been maintained in
its current location along with being the Brewer's quality of life since 1990, when they
purchased the property with the sole intent to participate in the equine industry. The barn
is permitted under building permit number 2004031300 and is located near the permitted
shed/feed room and a wash rack for bathing. The horse barn is also enclosed within the
permitted fenced-in area. The horse barn was built in its current location as it was the only
cleared area, with the remaining property being overgrown with trees and brush. The
current location of the horse barn fits the property and cannot be relocated as the same
setbacks and encroachment issues will occur with the southern neighbor or other current
landscape or structures. The subject property owners did their due diligence in 2004 to
comply with the building permit application and requirements and have relied on those
permits and inspections to be compliant.
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 special conditions
and circumstances that do not result from the Petitioners'actions that the horse barn was
built over 30 years ago on a legally conforming lot and existed when the current subject
property owners purchased the 1231 15th ST SW property in 1990. In 2004, the barn was
brought up to code with current architectural and engineered drawings and a Collier
County permit, building permit number 2004031300. The 2004 permit describes the job as
horse stalls with rear, left, and right setbacks as 30 feet. The county's permit was relied
upon to meet the legal standards and compliance with the LDC until now. The northern
residence at 1221 15th ST SW was built in 2002, and at no time did any problems arise
from any encroachment or setback requirements of the current location of the barn to the
'The Hearing Examiner's findings are italicized.
Page 2 of 6
adjacent residence to the north. The 1221 15th ST SW residence has had numerous owners,
with the current owner residing since 2018; no issues arose until recently in 2022 when
the code case pertaining to the encroachment in the separation distance with the adjacent
neighboring structure to the north.
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 the literal
interpretation of the LDC words, unnecessary and undue hardships and creates a difficulty
for the barn's location. The main hardship is that the property does not have the open space
for the barn to be moved unless it were to create a similar encroachment with the adjacent
neighbor to the south. Trees and brush have been removed for fence placement and other
legally permitted structures. There currently stands a large oak tree in the middle of the
back of the property,palm trees throughout the property, and a south neighbor situated at
the back of their property, which the horse barn would not meet the LDC required
separation distance of 100 feet if moved to the rear of the property. The Petitioner does not
wish to remove more trees as they wish to preserve the oak and palm trees. The current
location of the horse barn in question is the best all-around location of the property since
it has existed there for over 30 years. Another undue hardship is the financial burden that
would arise with trying to move or relocate the horse barn.
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 the minimum variance
requested is 40.2 feet and is the most reasonable use of the land since the barn has existed
in the present location for over 30 years, and the request is not an increase from the current
conditions. This request is to separate the existing horse barn from the adjacent neighbor
located north at 1221 15th ST SW. The adjacent lot is a nonconforming 75-foot-wide lot
with a side property line set back of only 7.5 feet instead of the 30 foot side setback as the
conforming lot for the subject property. The request will allow the existing barn to remain
where it has been for several decades, and permitted since 2004, at a distance of 59.8 feet
from the adjacent residence north of the north side property line. If the subject property
owners were to have to relocate the horse barn, it would cause an excessive financial
burden. The owners have already incurred expenses installing an 8-foot wood privacy
fence the entire length of the north property lot to create peace and harmony with the north
neighbor. They have also complied with each code enforcement case open, including this
most recent one concerning the encroaching barn.
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 the variance
request of 40.2 feet is only being requested to separate the current horse barn from the
Page 3 of 6
adjacent residence to the north. As previously stated, the adjacent lot to the north is a
nonconforming lot with a side property line setback of only 7.5 feet, while the subject
property since it is a conforming lot, has a side setback of 30 feet. The horse barn has
existed for over 30 years and was brought to be code-compliant in 2004. No special
privilege is being sought as the subject property owners are attempting to uphold the
building permit number 2004031300 that was granted in 2004. The neighboring residence
on the adjacent property to the north was built in 2002 and has since had multiple
homeowners with no problems arising until the recent discovery of the setback deficiency.
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 in the Estates
Zoning District, keeping horses not exceeding two per acre is allowable as an accessory
to a permitted single-family dwelling. Granting this variance of 40.2 feet will be in
harmony with the LDC, and it will not be injurious or detrimental to the public. The subject
property owners are requesting the variance to continue the livelihood and family
memories they have made over the past 30 years. The owners have been legally compliant
and have attempted to rectify the outstanding issues and be a good neighbor by applying
for the variance. The owners have tried to be amicable with all the neighbors, and in their
duration as the subject property owners, they have never had problems with any neighbors
until recently. The owners have erected an 8-foot wooden privacy fence, hoping to alleviate
ongoing issues.
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 subject
property is a legally conforming lot located in the Golden Gate Estates, absent of
preserves, lakes, or golf courses, specifically. The subject lot was developed in 1987 with
a single-family residence, and the subject property was originally minimally cleared.
Permits were granted later to remove trees for other structures and for a fence. According
to the aerial, the owners might have to remove some trees on their property to provide
possible space if they could manage to relocate the barn. However, the owners rightfully
prefer to keep the remaining trees to maintain the natural essence of the Estates Zoning
District on the subject property. Also, the adjacent property to the north is a legally
nonconforming lot with 7.5 foot side setbacks for a 75-foot-wide lot. According to the
survey, the subject property residence and the adjacent property residence to the north
only have a 64.6 feet separation distance between them. Granting the variance will offer
legal continuity for the property owners who have resided on the subject property for over
30 years.
8. Will granting the Variance be consistent with the GMP?
Page 4 of 6
The record evidence and testimony from the public hearing reflects that approval of this
Variance will be consistent with the Growth Management Plan.
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-PL20230003394, filed by Donnie
and Rebecca Brewer, with respect to the ±2.27-acre property described as the south 150 feet of
Tract 10, Golden Gate Estates, Unit No. 193 subdivision is located at 1231 15th Street S.W., on
the west side of 15th Street S.W., in Section 17, Township 49 South, Range 27 East, Collier
County, Florida, for the following:
• A 41.2-foot variance from the Land Development Code to reduce the required minimum
100 feet separation distance from the adjacent residence to the north to 59.8 feet for an
existing permitted accessory shelter for horses.
Said changes are fully described in the Boundary Survey attached as Exhibit"A" and the Proposed
Site Plan & Detail for the Variance attached as Exhibit"B" and are subject to the condition(s) set
forth below.
ATTACHMENTS.
Exhibit A—Boundary Survey
Exhibit B—Proposed Site Plan & Detail for the Variance
LEGAL DESCRIPTION.
The south 150 feet of Tract 10, Golden Gate Estates, Unit No. 193 subdivision is located at 1231
15th Street S.W., on the west side of 15th Street S.W., in Section 17, Township 49 South, Range
27 East, Collier County, Florida
CONDITIONS.
All other applicable state or federal permits must be obtained before commencement of the
development.
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.
X. ......,g--t..,.....-w---
December 1, 2023
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 6 of 6
EXHIBIT "A"
Updated Survey-
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