HEX Minutes 12/14/2023December 14, 2023
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TRANSCRIPT OF THE MEETING OF THE
COLLIER COUNTY HEARING EXAMINER
Naples, Florida
December 14, 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, Planner III
Eric Ortman, Principal Planner
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P R O C E E D I N G S
HEARING EXAMINER DICKMAN: All right. Good morning, everyone. Let's get
started.
Today's December 14, 2023.
All rise for the Pledge of Allegiance.
(The Pledge of Allegiance was recited in unison.)
HEARING EXAMINER DICKMAN: Okay. Good morning, again. My name is
Andrew Dickman. I'm the Hearing Examiner for Collier County. I am a Florida Bar attorney in
good standing. I've been working in the area of local government land-use zoning for more than
20 years. I am not a county employee. I'm a contractor by the Board of County Commissioners.
I'm here as an impartial decision-maker.
What we are going to be doing here today is conducting what's known as a quasi-judicial
hearing. What that means is that we'll be -- I'll be applying the fundamental fairness, due process,
not the formal rules of evidence. But what I'm going to be looking for is -- during this process is
evidence and testimony and exhibits and things of that nature that apply to the criteria that's listed
in the county code for the particular petition.
So the way that we conduct these hearings is that the county will go first with the podium
in the center here and tell me a little bit about the application. They'll go through their staff report,
any recommendations, any conditions, describe the notices, and then we'll go to the applicant or the
applicant's representative over here in the podium by the court reporter, and they'll put on their case
in chief.
Then I'll open it up for public comment here in the center. If you want to speak here
today, you need to fill out a card, a speaker's card, and hand it to this young lady over here waving
to everybody.
And this is also a hybrid meeting which means that the county has opened it up for folks to
be able to participate via Zoom. So if anyone uses that avenue, we'll have that. So we'll have the
public speaking, and then if the applicant or the applicant's representative wants to have any
rebuttal, they may do that.
I do not make decisions here today. Under the code, my job is to close the record here
after the hearing, take all that information back, and then within 30 days render a decision, a
written decision.
Now, I will tell you that I have not had any conversations with staff, county staff, with any
of the applicants, any representatives of the applicants, any members of the public. I am literally
here in an impartial manner. I've looked at everything that's in the files. I've looked at the
applications. I've looked at all the materials.
So that's the essence of a quasi-judicial hearing, to have someone here that's impartial that
will look for applicable evidence and apply it to the criteria for approval of whatever is being
applied for.
Anyone who wants to testify here today has to do so under oath, and in a minute I'll ask the
court reporter to administer that oath. I mentioned we have a court reporter here. We take
verbatim transcripts. And if anyone starts talking over one another or we, you know, give answers
with hand gestures or head nods, she's going to stop the process and say, I need to -- I need you to
slow down or not speak over each other, because it's very important to capture the actual verbatim
proceedings.
So with that, also -- oh, also, if you're going to have a conversation with whoever you're
sitting with or whatever, if you need to get on the phone, go out in the hallway, please, because for
some reason the acoustics in this room are really great, and I can hear -- almost can hear
everybody, you know, and I really try to listen to everybody when they speak.
I want you to relax. If you're going to speak, come on up. Relax. This is not a -- this is
not a -- we're all friends here. The most important thing for me is to make sure I get the
information that anyone is trying to provide to me, that it's given to me. So don't be nervous. I
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get nervous speaking in public, but -- so I understand how it is. So just relax. It's -- this is
a -- you're in good company here.
So with that, if we could have anyone who's going to speak, 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, great.
***So we're going to move right into agenda Item 3A.
MR. BELLOWS: For the record, Ray Bellows.
They're companion items, 3A and 3B.
HEARING EXAMINER DICKMAN: Gotcha.
MR. BELLOWS: And they'll be presented together.
HEARING EXAMINER DICKMAN: So there will be one presentation but two
decisions.
MR. BELLOWS: Correct.
HEARING EXAMINER DICKMAN: All right. Gotcha. Excellent.
Good morning, John.
MR. KELLY: Good morning, Mr. Dickman. John Kelly, Planner III, for the record.
Before you is Agenda Item 3A which is variance, PL20230009299, and Agenda Item 3B,
which is boat dock PL20220006082.
The requested actions that the petitioner requests the Hearing Examiner to approve, both a
variance from Section 5.03.06.E.6 of the Collier County Land Development Code to reduce the
required side yard riparian setback from 7.5 feet to 0 on both sides for a lot with 30 feet of water
frontage and for an 18-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 38 feet into a waterway that is 125 plus-or-minus feet wide pursuant to Section 5.03.06.E.1
of the LDC for the benefit of property located at 267 Third Street in Bonita Shores -- it's
0.04 acres -- and further described a Lot 2, Block G, Little Hickory Shores, Unit 3 Re-plat, in
Section 5, Township 48 South, Range 25 East, Collier County, Florida.
It's located within a Residential Single-Family 4 zoning district.
Public notice requirements for the variance are as contained within Section 10.03.06.F.2
and, for the boat dock extension, Section 10.03.06.H.2.
The required agent letter was sent by the applicant's agent on or about July 15, 2023. The
property owner notification letter and newspaper ad were satisfied by the county on November 24,
2023, and a public hearing sign was posted by me on November 28, 2023, to the front of that
property.
The variance application was reviewed by staff based upon the review criteria contained
within LDC Section 9.04.03, A through H, with findings stated within the staff report.
The boat dock extension was reviewed based upon the review criteria within Section
5.03.06.H. Of the primary criteria, it satisfied four of five. Of the secondary criteria, it satisfied
four of six, with the sixth being not applicable, the Manatee Protection Plan. And both have been
found to be consistent with both the Growth Management Plan and the Land Development Code.
Staff further notes that the subject property is a recognized boat dock lot as per BCC
Resolution 87-260, and the variance request is consistent with Resolution 2000-51.
With respect to public comment, I received a letter of objection yesterday. That prompted
me to produce Attachment G, which has been distributed this morning. It's also my understanding
that those folks may be online to be heard this morning.
HEARING EXAMINER DICKMAN: Okay.
MR. KELLY: So that is the only comments I've received so far.
Staff's recommendation is that the Hearing Examiner approve the variance in accordance
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with the proposed plans contained within Attachment A subject to the following conditions of
approval: One, the dock is private in nature and shall not be used for rental purposes and, 2, the
dock shall not be used for any commercial purposes, including mooring commercial boats.
Staff also recommends approval of the companion boat dock extension in accordance with
the proposed plans contained within Attachment A subject to two additional conditions of
approval. One, the approval is predicated upon the approval of the companion variance by the
Hearing Examiner and, absent such approval, the boat dock extension is void and, two, prior to or
concurrent with obtaining a building permit for the dock, a right-of-way permit shall be obtained
for access improvements to prevent roadway and drainage system damage if not previously
obtained as per Resolution 87-260.
That concludes staff's presentation.
HEARING EXAMINER DICKMAN: Thanks, John.
So this is -- these are the infamous boat dock lots. So it's one of the only -- one of the very
few areas where you can have a dock without a principal structure on it; is that correct?
MR. KELLY: Correct.
HEARING EXAMINER DICKMAN: Okay. Which makes it an unusual -- slightly
unusual situation.
Okay. Is the applicant or the applicant representative here? Come on up.
Good morning, Nick.
MR. PEARSON: Good morning, Mr. Hearing Examiner.
For the record, my name is Nick Pearson. I'm the owner of Bayshore Marine Consulting,
representing Mr. Brad Wingfelder.
As you can see here on the PowerPoint, this is the general location of the property. It's in
the northern area of Collier County sort of on the peninsula adjacent to all the other boat slip lots
that you were referring to a moment ago.
If we could go to the next slide.
So this is -- it's a little bit hard to see.
HEARING EXAMINER DICKMAN: Let me see if I can get the lights for you.
MR. PEARSON: This is kind of a general overview of the area. As you can see, the
subject property is circled in red sort of in the middle of the screen.
Just a couple notes about this area. Obviously, there are three canals further up the
waterway. There's a commercial marina up there as well, and it's kind of obscured by the header,
but there is also a multifamily dock kind of adjacent to that marina, so boats do travel through here
fairly frequently. As you can see, there are actually two boats kind of just to the north of where
Mr. Wingfelder's property is.
Next slide, please.
So this lot is 30 feet wide. As you can see, it does also kind of jut out into the waterway a
little bit. So the most restrictive point at this location where we'd be measuring protrusion from
would be the face of the seawall. Depths kind of range from -- again, kind of hard to see -- but
two to three feet at the wall. At about the 20-foot contour, which is where we're normally allowed
to build to without a boat dock extension, you have about three to four feet of water, and then sort
of towards the 40 to 45 feet from shore you have about seven to eight feet of water at mean low
tide.
Next slide, please.
So this is just a little bit of a closeup. You can see the water depths a little bit better here.
The dock that we were proposing to build is about -- it's three feet wide and about 36 feet in length.
The vessel is protruding slightly more than that on an angle, so 38 feet of protrusion LOA. So that
would include the bow pulpit, motors, everything.
And I also want to note here that the waterway's most restrictive point is 125 feet wide.
Next slide, please.
This is a little bit of a better view, I think, of kind of the water depths that we're dealing
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with. So, again, you have about two to three feet at the wall, and it goes to about seven to eight
feet, basically, out at the -- near to the 40-foot contour.
So the boat that we would be proposing to have would likely draft about two to three feet.
The beam we're looking at is probably about 12 feet in width. Mr. Wingfelder hasn't actually
purchased the boat yet. We're waiting on this approval to go through before making that decision.
Obviously, we don't -- he doesn't want to buy something and then be denied the petition and not
have a place for it.
But also something I want to point out just kind of relating to water depths, most lifts you
have about 10 inches of space for the cradle and then 10 inches on top of that for the boat beams,
the bunks.
So all in all, you need about two feet for the lift, on top of that, two to three feet as well. It
does require a fair amount of water depth, which is somewhat challenging, for example, in this
location right next to the wall.
Obviously, this lot presents sort of a unique difficulty just because of its narrow width. So
mooring in a shore parallel configuration to begin with probably is not a viable configuration. But
for the sake of the criteria, I think it's probably important to review that way anyway.
Next slide, please.
So this is -- this is an important slide because -- obviously, I know that we don't look at
precedence, and we look at each project individually, but at the same time, it's not really out of
ordinary for the area. In fact, there's several other docks that are longer than this one that are just
down the waterway.
And, again, I also want to point out that the property across from Mr. Wingfelder is
actually part of the condo that is -- that was at the north end of my first slide. So this area is under
easement and will never be developed.
HEARING EXAMINER DICKMAN: And what's this to the east?
MR. PEARSON: That is a single-family home, and, actually, there is one additional boat
slip lot between Mr. --
HEARING EXAMINER DICKMAN: Right there?
MR. PEARSON: Yes, yes.
HEARING EXAMINER DICKMAN: Okay.
MR. PEARSON: So something to point out here. We are extending slightly past the
25 percent waterway contour. It's actually about 30 percent; however, because of the nature of the
lot across the way, we would be maintaining more than 50 percent of the waterway still for public
navigation.
Next slide, please.
As per every petition, a submerged resource survey was done here. No resources were
found. No seagrasses of any sort, so no real impacts to be concerned about.
Next slide, please.
So I don't want to go through all these, but I do kind of want to, I guess, just touch on it
briefly how -- what criteria are met and not met. In the primaries, you can see there's that
waterway width criteria that's not met. Again, maintaining 50 percent, but we are going slightly
past the 25 percent contour.
And as per the secondary, the one criteria that we were specifically not meeting is the
shoreline-to-boat length ratio which, in this case, would be very difficult to meet even if we weren't
proposing a BDE. That would require Mr. Wingfelder's boat to be only 15 feet long or less.
Okay. Next slide, please.
So that is my whole presentation. Again, that's an overview of what we're proposing here.
And happy --
HEARING EXAMINER DICKMAN: I have a quick question.
MR. PEARSON: Sure.
HEARING EXAMINER DICKMAN: So this -- so you're saying this is another boat dock
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lot?
MR. PEARSON: Yes.
HEARING EXAMINER DICKMAN: And it looks like -- so this -- I guess the seawalls
run like this. So if they ever came in for -- they would have to -- yeah, they would be in the same
situation.
MR. PEARSON: Yes.
HEARING EXAMINER DICKMAN: And there is not a dock here or there is?
MR. PEARSON: There's not currently. It looked like they were in for permitting to
build something kind of on the east side again. Obviously, that's subject to change. I only
noticed that just actually looking at the state permitting portal.
HEARING EXAMINER DICKMAN: And so you -- so the angle of these just straight-out
pier docks, is that due to the shoreline angle?
MR. PEARSON: The shoreline does meander a bit, and many of the shorelines along
here are different. There are some that have seawalls; there are some that are just mangroves.
HEARING EXAMINER DICKMAN: Gotcha.
MR. PEARSON: The one directly to the west of ours, for example, it is pretty much just
mangroves growing over a riprap.
As far as I've been able to tell, it seems like most of the riparian lines are more or less
extensions of the property lines. Again, that's kind of anecdotal, but in this case I can say that that
is what happened for Mr. Wingfelder's property.
HEARING EXAMINER DICKMAN: Hi, John.
MR. KELLY: For the record, John Kelly.
This is Block G, Lot 2, and the lot to the west, as it's pictured here, is Lot 1. That's owned
by the single-family residence that's further to the west.
HEARING EXAMINER DICKMAN: Okay.
MR. KELLY: And to my knowledge, there are only -- of the boat dock lots that are along
this shore, there are two that have the seawall, and that's these two, Lots 1 and 2.
HEARING EXAMINER DICKMAN: Gotcha. Thank you.
Okay. Anything else?
MR. PEARSON: That is pretty much it. I would just say, in conclusion, that I feel that
we're pretty in line with what else is already out there and that I feel that this is -- this is a
reasonable request.
HEARING EXAMINER DICKMAN: Okay. Great. Let me get the lights, and we'll go
to public comment.
All right. Do we have public speakers here today?
MS. PADRON: Good morning. We do.
HEARING EXAMINER DICKMAN: Okay.
MS. PADRON: Our first public speaker is Charles Baima.
HEARING EXAMINER DICKMAN: Virtually?
MS. PADRON: That's correct.
HEARING EXAMINER DICKMAN: Okay.
MR. BAIMA: Yes. My name is Charles Baima.
HEARING EXAMINER DICKMAN: Yes, sir. Good morning.
MR. BAIMA: Hello?
HEARING EXAMINER DICKMAN: I can hear you. Good morning.
MR. BAIMA: Good morning.
HEARING EXAMINER DICKMAN: Go ahead.
MR. BAIMA: My name is Charles Baima. I'm located on 3rd Street. My wife Jennifer
and I have lived there for over 30 years, and we use that waterway all the time for egress to fishing
and boating areas in the Estero area.
And the proposed boat dock extension of 38 feet would make navigating that area quite
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difficult because the land mass opposite that dock -- proposed dock is eroded into the waterway.
You can see that a little bit from those aerial slides. But it's already narrow in there, especially if a
boat is coming from the other direction.
So we're not in favor of this. We're not able to be at the hearing because our house was
demolished due to Hurricane Ian, but we're against this proposal, and most of the neighbors that
I've spoken to also feel that it's unnecessary. The length is excessive. Thank you.
HEARING EXAMINER DICKMAN: Okay. Thank you very much, sir. Anyone else?
MS. PADRON: We do not have additional speakers.
HEARING EXAMINER DICKMAN: Okay. Then do we -- do we want to have any
rebuttal to that?
Nick, can you come up and just address the navigation real quick. I mean, is this a slow
speed area? Is it a marked channel?
MR. PEARSON: It's not a marked channel. And, sorry, Nick Pearson, for the record.
This is a pretty well-documented area simply because of all the BDEs that have happened
along this route. If you look at all the resolutions, at some point or other I think all of them have
had to have water depths taken. So I did actually look into that. I didn't receive this comment
until late yesterday, so there wasn't a whole lot I could do to address it except for look at some of
those other resolutions.
And it appeared to me that the water depths that kind of were at the back of
Mr. Wingfelder's boat extend a fair ways into the waterway. You know, I don't have water depths
entirely across the waterway, but looking at some of the other resolutions, it appeared to me that
you have seven to eight feet at low tide extending at least another 30 to 40 feet across. And,
frankly, that seems like enough water to me to navigate in, especially considering the width of
some of the canals that are further up the waterway at this location. You know, those canals are
75 to 85 feet in width, and if you have 20-foot docks on either side, you're left with about, you
know, 35 feet of water.
HEARING EXAMINER DICKMAN: So on your measurements -- I'm looking at your
dimensions -- you're showing 134 feet from the end of the proposed dock facility all the way over
to the edge of the mangroves on the north side, but you could actually see with some of the water
color, the lighter color, I guess, would be shallower water, you would think, and that seems to be, if
I use your scale, maybe about 20 feet on the other side, and so that's leaves 114 of darker water.
So I don't know how deep that darker water is. But it seems like that must be the channel that
folks come through that's more an 100 -- it looks like it's more than 100 feet across.
MR. PEARSON: It's pretty substantial. In my opinion, there's plenty of room to navigate
here.
HEARING EXAMINER DICKMAN: All right. If we don't have any other public
speakers and anything else from the county...
(No response.)
HEARING EXAMINER DICKMAN: Going once, going twice.
Is that everything, Nick?
MR. PEARSON: That was all I had.
HEARING EXAMINER DICKMAN: All right. Well, I'll get decisions out. I'll close
this public hearing. I will get decisions out as quickly as I can on both of these items.
Thank you very much. Nice presentation. It's good to see you again.
MR. PEARSON: Thank you, Mr. Dickman.
HEARING EXAMINER DICKMAN: All right. Okay. So that was 3A and 3B. So
now we're going to go to 3C.
MR. KELLY: ***Good morning, once again. This is Agenda Item 3C. It's a
nonconforming use alteration, PL20230012731.
The petitioner requests the Hearing Examiner approve a nonconforming use alteration
pursuant to LDC Section 9.03.03.B.4 to allow for the replacement of a mobile home that will
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satisfy all dimensional standards for the principal structures within the subject zoning district.
The property is located at 1114 Palm Drive in Immokalee. It's Property ID
No. 00073840006 in Section 32, Township 46 South, Range 29 East, Collier County, Florida.
There's an extensive metes and bounds description. That's Attachment A.
The property is located within Residential Single-Family 4 zoning district. The subject
homesteaded property comprises 0.32 acres. The NUA is required to replace a legally
nonconforming mobile home that was initially placed in 1970s when the property was within an
IA-1 zoning district that allowed for the use. The mobile home has since been destroyed by
Hurricane Ian, and the zoning district no longer allows mobile homes as of right.
Public notice requirements were as per LDC Section 10.03.06.V, as in Victor. The
property owner notification letter was sent by the county on November 24, 2023, as was the
newspaper ad run on that date, and the public hearing signs were placed by me on November 28,
2023.
This petition was reviewed by staff based upon the review criteria contained within LDC
Section 9.03.03.B.5, A through F, and has been found to be consistent with both the Growth
Management Plan and the Land Development Code.
Two phone calls were received requesting information pertaining to this project; however,
neither expressed a desire to oppose the project, and I have not heard more from either.
Staff recommends the Hearing Examiner approve this petition as described in accordance
with the proposed plans provided within Attachment B subject to the following condition of
approval -- conditions, pardon me. That is, one, the scope of this NUA is limited to replacement
of the existing mobile home and, two, the building permits must be issued for both the demolition
of the existing mobile home and the replacement of the new mobile home prior to performance of
such work. And the applicant's here.
That concludes staff's presentation.
HEARING EXAMINER DICKMAN: Yeah. Thank you very much, John. Real
quickly, so it used to be called trailers, then mobile homes. I believe they're called manufactured
homes now. I don't know if that's your legal definition of "mobile homes," but it's my
understanding that they're made to HUD standards at this point.
MR. KELLY: The mobile homes, I believe, are Department of Transportation; whereas,
your modular homes would have to satisfy the building code.
HEARING EXAMINER DICKMAN: Right. Okay. But they are going to be affixed to
the ground and --
MR. KELLY: I'll leave that to the applicant.
HEARING EXAMINER DICKMAN: All right. Great.
Okay. Is the applicant here?
Good morning.
MS. ZAJICEK: Good morning. Hi. My name is Bethany Zajicek. I am representing
the homeowner and Florida Rebuild.
You were asking if this is a manufactured HUD under -- manufactured home under HUD
standards. It is. It is affixed to the ground. It is block and anchored, tied down. So I did want
to answer that for you.
HEARING EXAMINER DICKMAN: I wrote my master's thesis on manufactured
housing, so -- sorry.
MS. ZAJICEK: Just a little bit about this whole situation. This applicant applied for the
Florida Rebuild program during Hurricane Irma. Their house was actually destroyed by Irma.
The original owner, Gabriela Jauregul, has since passed, so now it's under Samuel Plunkett.
When we went to apply for the demolition and mobile home is when we learned that the
zoning had changed on this project.
Everything is in conformance as far as we're not exceeding any building height
requirements, encroaching on any setbacks, decreasing any existing parking areas. There's no
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damage to the character or quality of the neighborhood. There is a -- diagonal from this there is a
mobile home community, so to speak; not like a park, but just like a subdivision, so it's not really
out of area on this.
They were approved with the Florida Rebuild program which is designed to replace
hurricane damaged homes. Ducky Recovery is the main contractor on this. They were assigned
the contract and awarded in 2022 where we started all the land development process.
You can go to the next slide.
This is just a legal description of the property at 114 [sic] Palm Drive there in Immokalee.
You can go to the next slide.
That is the subject location. Like I said, diagonal to that is the mobile home subdivision
that I was speaking to.
You can go to the next slide.
This is the project location where there is an existing mobile home. That mobile home has
since been demolished in the process of trying to obtain this new mobile home permit.
You can go to the next slide.
This is what was preexisting, so that is the original mobile home and the overview of the
lot.
You can go to the next slide.
This is the proposed new mobile home that they were approved for with the state of
Florida. It meets all front, side, and rear setbacks.
You can go to the next slide.
This is basically the front, side, and rear elevations, so your existing ground elevation on
this property is 3.6 (NAVD 1988). This would be raised no more than 48 inches on block. The
final for this home actually is to be 39.4 (NAVD 1988). And it will not exceed over 20 feet in
height.
You can go to the next slide.
So these are the required setbacks. It's 25 in the front, 25 in the rear, seven and a half on
the sides. The actual setbacks that we are proposing are 106 in the front, 50 in the rear, and nine
and a half on each side.
You can go to the next slide.
Obviously, pretty spelled out here. We won't -- we won't approve -- or if approved, we'll
not exceed any building height requirements, encroach on the setbacks, decrease any parking spots,
pose any threat to health and safety. We'll expedite the completion of this project, get the
homeowner back in their home. They've been staying in a hotel for years now trying to go
through this process with Florida Rebuild, and it will provide a newer, safer, and updated home to
the community.
And you can go to the next slide.
If not approved, it will keep the homeowner removed from their property with no -- no real
timeline on resolution. It does create an unnecessary additional financial and emotional hardship.
And this Hurricane Irma rebuild for Florida construction deadline is March 21st, 2023, and it will
also result in potentially a vacant and undeveloped lot in Collier County.
You can go to the next slide. And I think that's the end.
HEARING EXAMINER DICKMAN: Okay. Is there anybody here to speak from the
public?
MS. PADRON: We have no registered speakers.
HEARING EXAMINER DICKMAN: No registered speakers.
This is pretty straightforward. I understand exactly. You're meeting all the setbacks. It's
just the zoning has changed since the original -- the original home was on there. So I get that, and
I'm very sorry about that. I know the county -- a lot of people were affected in the county with
different types of -- from the hurricane, and I get that.
Nice job. Thank you very much. I'll get a decision out as quickly as possible.
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MS. ZAJICEK: All right. I appreciate that. Thank you.
HEARING EXAMINER DICKMAN: All right. Thank you very much.
***Okay. We're moving to 3D. 3D. And who do we have? All right.
MR. ORTMAN: Good morning, Mr. Dickman.
HEARING EXAMINER DICKMAN: Good morning.
MR. ORTMAN: For the record, Eric Ortman, principal planner.
This is Petition PDI-PL20230011202, Palisades Residential Planned Unit Development.
The petitioner requests an insubstantial change or PDI to Ordinance 22-20 for the Palisades
Residential Planned Unit Development to modify cross-sections shown in Exhibit C of the master
plan, including the depiction of the perimeter as-built elevation of 7 -- 12.5 feet. Sorry.
The subject 12-acre property is in the northwest quadrant of the intersection of Yarberry
Lane and Arbour Walk Circle approximately 1,200 feet south of the intersection of Orange
Blossom Road and Yarberry Lane, and Yarberry Lane is approximately 2,000 west of and runs
parallel to Airport Road.
The property is in Section 2, Township 49 South, Range 25 East, in unincorporated Collier
County.
An error in the survey of the berm wall elevations was discovered after construction of the
berm and wall which led to the submittal of this petition. As approved by Ordinance 22-20, the
maximum height of the berm/fence combination, according to the master plan, was 13 feet.
The actual berm wall height varies from just under 11 feet to 12-and-a-half feet, which
leaves this from six inches to two feet short of what is shown in the master plan.
The applicant met with neighbors primarily along the western border of the project who
were affected by this and proactively planted an additional hedge that will be allowed to grow 18 to
24 inches above the top of the existing wall to essentially negate the error of the wall being too
low. In addition, the applicant has planted additional small trees along the wall.
In reviewing this petition, an error was also discovered in Ordinance 22-20. In the
Deviation 1, the language of which reads, Deviation 1 from LDC Section 5.03.02.C.2, fences and
walls which permits a maximum fence/wall height of six feet in residential components of Planned
Unit Development districts to allow for a maximum fence/wall berm height of eight feet along the
PUD perimeter boundary. The word "berm" should not really have been in there to keep it
consistent.
To rectify this -- and we've discussed this with the applicant, and they were fine with it. If
eight is changed to 12.5, it will match the intent of the ordinance. It will match the master plan,
and staff is fine with that.
A NIM was held for this on November 16th at 2385 Orange Blossom Road, the Collier
County Public Library. There was one person in attendance who happens to live abutting to the
west, which is where the wall is the lowest. She just described -- or the applicant described to her
the steps that have been taken, as I forementioned, and the applicant will go into it further -- to
offset the error in the wall. The applicant has complied with all hearing notices.
The advertising and mailers went out November 27th, and the advertisement signs were
placed on the subject property November 30 -- 30th, and these are in Attachment 3 of the backup
materials, and staff is recommending approval of this petition.
HEARING EXAMINER DICKMAN: Great. Thank you very much. Nice job.
Let's go to the applicant. Good morning.
MS. FRANTZ: Good morning. I am Gem Frantz. I'm with RVI Planning and
Landscape Architecture, representing Seagate, and we also have a couple of other people here.
If we can go to the next slide.
So Keith Norton, here with Seagate. We also have Brandon Hadlock with Atwell, our
engineering team.
I have not presented here at the HEX before, so just to introduce myself a little bit, I am an
AICP certified planner. I've been in the private sector with RVI and previously Waldrop
December 14, 2023
Page 11 of 30
Engineering for about two-and-a-half years and prior to that, for a little over seven years, with
Collier County.
HEARING EXAMINER DICKMAN: Okay. I'll recognize you as an expert.
MS. FRANTZ: Thank you.
We can move to the next slide.
So the property is outlined in black here. And Eric described the property pretty well.
12 acres. We're accessed from Yarberry Lane south of Orange Blossom Trail. If you know, the
library headquarters is over there in the corner.
The PUD is a single-family residential subdivision. It's currently under construction,
zoned RPUD, and is in the urban residential subdistrict in the Future Land Use Element.
The PUD includes a few residential tracts. The right-of-way tract, a lake, and then all
around the edge is a setback and buffer. So as Eric described, really what we're here for today is
that our wall is shorter than we thought it would be, which is kind of funny and also not funny.
Next slide, please.
The reason that that means we have to be here is because the cross-section that was
included in our Master Concept Plan included these elevations in a few locations here. Because of
that surveying error and because our engineering and construction team were using a different
datum than the surveyor, it resulted in everything being built in the way that this cross-section is
shown but slightly lower. Because everything was slightly lower, we were informed that we
needed to update the master plan to change those elevations to reflect the as-built condition.
We can go to the next slide.
So that kind of has a cascade of changes on the actual application. So in the master plan,
that means we're asking to update the cross-section, the labels and the wall height. We're, in the
cross-section, adjusting the elevation of the adjacent grade and reflecting the berm and wall height,
reflecting the as-built compound condition.
As was already described, the deviation is also amended to, again, reflect the as-built
conditions and reflect that it previously called out only an 8-foot combination. When you looked
at all of those elevations that are on that previous cross-section, you see that it actually was
allowing for up to 13 feet. And so that results in a shorter wall, requiring a PDI.
We can go to the next slide.
As was mentioned, the applicant has met with the property owners along the west side of
the property. Those are the folks that are the most impacted by a shorter wall resulting in the
potential for, you know, less -- less of a buffer. And so to counteract that potential issue, we made
a few commitments to plant some additional oaks along the inside of the wall to maintain the shrub
that is on the inside and outside of the wall higher to adjust for that lower wall.
And then there was also a black chain-link fence that was installed to the -- in the
southwest corner of the property. That was just to address a concern that the neighborhood had
about folks walking through that area, and so it was addressing security and trying to be a good
neighbor.
A part of that commitment was also to come back and make this request for a change to the
Master Concept Plan.
You can go to the next slide.
So this is the amended master plan. You can see that none of those residential tracts have
changed. Our setbacks are all the same. What we have done is we've tried to more clearly
identify the wall along this western property line is required. We've identified where a couple of
different wall sections -- cross-sections end, because as a result of this change we've move from
one cross-section to two. We've not made any changes to the stormwater management system or
any density or intensity that were approved for the project.
You can move to the next slide.
So these are the two, now, cross-sections again reflecting the as-built -- as-built conditions,
and the reason that we moved to two was because in those two different locations, especially along
December 14, 2023
Page 12 of 30
the western property line. We have a scenario where there is a side yard, the side of the home is
adjacent to the property line, and then another where it's the rear of the home.
And so the elevations have been updated. We've reflected the condition of the wall, that
it's optional, but we've left a note that along the west property line the fence is not -- or the wall is
not optional.
And next slide.
And then here you see the deviation change. Pretty minor, clear-cut, amending that height
from 8 feet to 12.5.
HEARING EXAMINER DICKMAN: Explain the issue with -- the berm issue. Are we
removing the berm; is that what you said?
MS. FRANTZ: We're -- you can go ahead.
MR. ORTMAN: No, the berm is not being removed. The berm was always the intent.
And in the original ordinance, it shows on the master plan; it shows the berm plus the wall. And it
is -- if you calculate it, it is 13 feet in the master plan of the original ordinance. It was in the
deviation language that they inserted the word "berm." If they'd left it out, it wouldn't have been
that -- by mistake. So instead of taking out the word "berm," we added in 12-and-a-half feet to
account for the difference.
HEARING EXAMINER DICKMAN: Okay. Understood.
MS. FRANTZ: So it looks like we're asking for an increase in the wall height here but,
again, actually a decrease from what was previously approved.
HEARING EXAMINER DICKMAN: I understand.
MS. FRANTZ: Next slide.
Running through the PDI criteria really quickly, we're -- we agree with staff's analysis. I
won't belabor and run through all of those elements, but we don't trigger any of those criteria that
would create a regular PDI amendment -- a full PDI amendment, and the change is consistent with
the Growth Management Plan.
On the next slide, the criteria in Section E.2, again, we agree with staff's analysis. The
berm and wall height, plus the plantings that were -- we have committed to have mitigated, you
know, any potential for noise or sightlines and address the screening that's lost by the reduced
height of wall.
So in that way, we're maintaining compatibility with the surrounding properties, and we're
in agreement with staff about everything in the staff report, their recommendation of approval,
and --
HEARING EXAMINER DICKMAN: Okay.
MS. FRANTZ: -- I believe we're consistent with the GMP and the LDC.
HEARING EXAMINER DICKMAN: All right. Thanks very much. Do you have
anyone else who's going to speak, or do you want to go to public?
MS. FRANTZ: We're available for questions.
HEARING EXAMINER DICKMAN: Okay. Anybody signed up for public comments
here?
MS. PADRON: We have no registered speakers.
HEARING EXAMINER DICKMAN: No registered speakers. Okay.
Pretty straightforward. I understand what happened. This happens from time to time.
You know, it's just measurements and surveys and things like that. It's just, we've got to follow
the rules and, unfortunately, no matter how de minimis it is, we have to go through this process.
So -- but it's, again, pretty straightforward. Nice presentation. Nice to meet you. Good
to see you. And I guess if we're done with that, then we'll move on to the next item. I'll get a
decision out as soon as possible.
Thank you.
MR. ORTMAN: ***Good morning, again. Eric Ortman, principal planner, for the
record.
December 14, 2023
Page 13 of 30
Before I introduce this petition, I need to say that I have received several phone calls in the
last couple of weeks from people either inquiring about the nature of this petition or voicing some
opposition.
One of the gentlemen whom I had corresponded with stopped into the office yesterday.
He is with us today, and he wishes to introduce several documents. I had told him yesterday that
that would be up to your -- up to your decision, so I have printed out copies of them --
HEARING EXAMINER DICKMAN: Okay.
MR. ORTMAN: -- if you'd like, and I have also sent them to the applicant.
HEARING EXAMINER DICKMAN: Okay. We'll wait till we get to that. I guess that
speaker will present those documents, so we'll --
MR. ORTMAN: Okay. This is Petition VA PL20220003102 [sic] for 2560 39th Street
Southwest, a communications tower.
The petitioner requests a variance from Land Development Code Section 5.05.09.G.2,
which requires the base of the communication towers that are greater than 75 feet in height but less
than 185 feet in height and are commercially zoned property to be separated from the nearest
boundary of any parcel that is zoned residential, which includes Estates mobile home and TTRVC
by two-and-one-half times the height of the tower. This tower is 150 feet, which equates to a
separation requirement of 375 feet.
The subject property is at 2560 39th Street Southwest, which is between 27th Avenue and
25th Avenue Southwest. 39th Street Southwest runs parallel to Collier Boulevard and is just east
of both Collier Boulevard and Golden Gate City.
More specifically, the property is approximately 850 feet south of the intersection of
Golden Gate Parkway and Collier Boulevard. The subject property has an Estates designation per
the Future Land Use Element; however, the subject property is also identified in the Future Land
Use Element Map Series, Map No. 10, as being consistent by policy with the Growth Management
Plan through the implementation of a zoning reevaluation program in the 1990s. The property,
therefore, is zoned C-2 even though it has a residential -- I mean an Estates designation in the
Future Land Use Element.
Properties abutting 39th Street are -- as I said, they are zoned Estates except for the subject
parcel, which is C-2. PEG Naples, Limited Liability Company, is leasing a portion of the rear of
the parcel. A restaurant, Cracklin' Jack's, is located in the front portion of the parcel.
The cell tower itself is located within the leased -- within the leased area to maximize its
separation from each of the property boundaries. The fall zone of the tower is 72 feet, and that is
the minimum distance that the tower is set back from each of the property boundaries.
The applicant has complied with all hearing notices. The advertising and mailers went out
on November 27th, and they went out to everybody within 1,000 feet. There was an error in one
of my communications with a resident where I mistakenly said it was 500 feet; it was 1,000 feet.
And hearing advertisement signs were placed on the property November 28th, included in
Attachment 2 of your packet materials, and staff recommends approval of this petition.
HEARING EXAMINER DICKMAN: Okay. Thank you very much.
Is the applicant here, or the applicant's representative?
Good morning.
MS. JAHN: Good morning. Good morning. I'm Mattaniah Jahn, 935 Main Street, Suite
C4, Safety Harbor, Florida, 34695.
I come before you today with staff recommendation of approval for a variance for the
monopine style communication tower.
Just give me a moment while I get set up here. I have a presentation.
HEARING EXAMINER DICKMAN: Yeah. Take your time; take your time. And
you're an attorney?
MS. JAHN: Yes. So I haven't had the pleasure of coming before the Hearing Examiner's
dais. I have had the pleasure of coming before the dais of the Planning Commission and Board of
December 14, 2023
Page 14 of 30
County Commissioners.
I'm a zoning and land-use attorney licensed in Florida and Georgia. Hopefully someday
soon in Tennessee. I've been practicing zoning and land-use law particularly focusing on
communications towers since September 27th, 2013. So it's amazing to think that 10 years has
passed already.
HEARING EXAMINER DICKMAN: The law of cell towers has too. Lots of changes.
MS. JAHN: Yeah.
HEARING EXAMINER DICKMAN: But as an attorney, you obviously know that, you
know, your competent substantial evidence has to come from an expert. I recognize you as an
attorney, and you can make legal arguments, but the substantial competent evidence has to come
from an expert.
MS. JAHN: Okay. Well, I can proffer the plans that are on file as well as the experts'
reports. Do you want the reports to be --
HEARING EXAMINER DICKMAN: And we also have the county staff report --
MS. JAHN: Okay.
HEARING EXAMINER DICKMAN: -- and the county planner. Those are all
competent, you know -- substantial competent evidence. I just want to make it clear that, you
know, I'm also an urban planner before I was a lawyer, and I've attempted to be both expert and
lawyer at some hearings and was told very -- quite candidly, that you've got to choose one.
MS. JAHN: I understand. So I choose to be advocate.
HEARING EXAMINER DICKMAN: Okay.
MS. JAHN: All right. So I come before you today with staff -- I come before you today
on behalf of Vertical Bridge, VB BTS LLC and T-Mobile on behalf -- for a 145-foot-tall monopine
style communication tower at 2560 39th Street Southwest, Parcel ID 38054160007, and this
property is developed as the Cracklin' Jack's restaurant.
In all maps that I show you today, up with be north unless I state otherwise.
I'm currently showing you an aerial from the Collier County Property Appraiser.
Next, please.
I have applied a yellow arrow to the parcel that is highlighted in yellow. That is the parent
parcel from the Property Appraiser's records, and I have added that arrow showing the approximate
location of the tower.
And this property's on the edge of the Urban Estates. On the other side of Collier
Boulevard, you go into Golden Gate City. To the north, you have two residential lots, then 25th
Avenue Southwest in the Urban Estates -- then Urban Estates residential along Collier Boulevard
corridor with Southwest 39th Street actually fronting those lots.
To the south are residential lots in the Estates, then 27th Avenue Southwest, then you have
more lots in the Estates. And, again, 39th Street Southwest fronts along those lots as well.
To the east -- and this will become a little more clear as we get closer -- there are
high-voltage power lines on the parent property that are in between the communication tower and
the neighboring parcels.
To the west is the restaurant, then 39th Street Southwest, then Collier Boulevard, then a
golf course that is currently being redeveloped. I was -- I remember watching one of those
hearings. I know there's a lot going on with that. And then higher density -- higher density
residential and commercial uses.
Next, please.
This is a closer view, and you can start to see the layout of the parent parcel with the
restaurant on the western side, and then on the eastern half you have cleared lands in a parking lot.
You can see that there is a cleared pathway that runs along the tree line, that is on the eastern side
of the parent parcel, and that runs through neighboring parcels. That's where the high-voltage
lines are.
Next, please.
December 14, 2023
Page 15 of 30
This arrow points to the location of the monopine.
Next, please.
And then this is just a closer view. You can actually see some of the shadows of the high
voltage lines on the eastern side and, basically, there's a parking lot in the back. The monopine's
proposed to be west of that parking lot but east of the trees that are on the parent parcel.
Next, please.
So right where that arrow is pointing.
Next.
So as you could see from the different -- as you could see from the aerials, the mature
vegetation is on the parent parcel but, more importantly, it extends out through the area. There's
urban canopy.
I've jumped a little bit ahead of myself to the Zoning and Future Land Use Maps.
But -- and that helps to break up view sheds and decrease the visibility of the monopine in ways
that -- especially as you get further out, it's beyond just the two-and-a-half times tower height
separation.
The parent parcel is zoned C-2 with a Future Land Use designation of Estates. It fronts
39th Street Southwest.
Communication towers are generally permitted as of right in C-2 zoning. We are here
with a variance request only to request relief from the residential separation requirement. I am not
requesting any relief from any of the other standards within the tower code nor am I requesting any
relief from any of the C-2 development standards.
So this monopine will meet all the required development standards under your code with
the exception of the residential separation. As far as that goes, you know, that is something that I
would imagine has been -- I would imagine -- I will get to my presentation in chief and come back
to it.
All right. So, anyways, the monopine is near the center east portion of the parcel. You
have the intervening power lines.
Next, please.
This is the survey on file, and you can see the Cracklin' Jack's restaurant.
Is there a laser pointer here? Did I cover it up with my materials?
HEARING EXAMINER DICKMAN: I have one here.
MS. JAHN: Okay. So the square that you're seeing is the leased parcel. The
compound -- the equipment compound and the landscape buffer will be located within that leased
parcel. You can see the overhead lines to the east. You can see the access easement that goes
over the existing pavement extending to the west. The Cracklin' Jack's restaurant is on the western
side, and 39th Street is shown on the far west.
HEARING EXAMINER DICKMAN: How did I do?
MS. JAHN: You did well.
Next.
The purple arrow shows the location of the monopine within the compound. I have
applied that to the plans. This is the survey on file.
Next, please.
This is sheet C1, which is on the -- in the record, and this actually shows the layout of the
monopine with the compound, and this follows the same format as before. You can see a
circle -- a smaller circle within that square, that is the base of the monopine. And then you can see
a larger circle that is dashed, that is the fall zone radius. And fall zone technology -- we have
provided a fall zone letter on record. But, essentially, fall zone technology is a pre-engineered
crimp point. It folds over upon itself. Usually when I'm presenting to appointed boards and the
like, I recount a story of Hurricane Charley coming through Charlotte County and the interstate
lights folding over upon themselves just to discuss that this isn't groundbreaking technology. It's
been around.
December 14, 2023
Page 16 of 30
HEARING EXAMINER DICKMAN: Yeah. I wanted to ask you about that. Is
that -- is that really the only time you see wireless towers falling is during hurricanes or heavy
storms?
MS. JAHN: Down here in Florida, yes.
HEARING EXAMINER DICKMAN: Yeah. That's about it, right?
MS. JAHN: Yes.
HEARING EXAMINER DICKMAN: Unless somebody deliberately sabotages it.
MS. JAHN: And that's a problem that, you know, your electric companies face, right?
You know, they've hardened their sites and stuff. So, you know, this is going to be within -- this is
going to be within a walled compound so, fortunately, that will be avoided.
HEARING EXAMINER DICKMAN: Okay. Thank you.
MS. JAHN: Next, please.
And that purple arrow I applied. Again, I have my setbacks shown on Sheet C1 for both
the tower and the compound.
Next, please.
This is the layout of the compound just showing the existing -- just showing existing trees
around the area that will be preserved but also showing the space for the landscape buffer which
will be provided during the SDP process. It will be compliant with your Land Development Code.
It also shows that the equipment compound will be walled. You will notice that there is
one rectangle immediately to the right of the monopole -- monopine's base. That is the equipment
pad for T-Mobile. T-Mobile is the anchor tenant on this site.
And then you have three additional squares or rectangles. One immediately to the south
of the monopine, and then two further south. Those are equipment spaces within the compound
for future collocations. This is designed so that it can be shared with multiple carriers. So, for
example, there is a tower further north. It's actually the next handoff for T-Mobile at 4111 Green
Boulevard, and that tower is collocated by both Verizon and T-Mobile.
Next, please. Next, please.
This is the code required FLUCFCS map just showing that we're not impacting any native
habitats. We're going to be in a section that's identified as 1415, specifically where that gray
gravelly looking pad is to the east of Section 743 and to the west of the parking lot just south of the
circulator loop that extends from the parking lot on the western side to the parking lot on the
eastern side.
Next, please.
Also, I would note that in the record you have National Environmental Policy Act report
that is on file. That shows that the monopine will not impact any -- any native species or
endangered species.
Next, please.
This is the elevation showing the monopine. The canopy start height will be 60 feet, so
the surrounding canopy height, and then extend to the top of the monopine. And that's -- it's,
essentially, intended to appear as a tree extending above the canopy.
There is space on the monopine for four collocations. Those are shown.
Actually, can we hit "next."
So you can see the purple arrow that I have applied. That is T-Mobile's collocation.
They are at the top of this monopine, so it is the minimum height necessary to provide T-Mobile's
required antenna to meet their RF objectives.
Next, please.
And then we have three collocations.
Next and next.
To the right is another graphic of the compound, again, from the plans in the record.
Next, please. Next. All right. Excuse me. Next, please.
This is the landscape plan from the SDP side of the application. There is a concurrent
December 14, 2023
Page 17 of 30
SDP, and it does meet the code requirements.
Next, please.
I'm going to run through the photo simulations that are on file. Unfortunately, I don't have
the Romulan Cloaking Device, or I would have no student loans at 10 years in. But I do
respectfully submit that this helps mitigate the visibility of the monopine.
Next, please.
So we're essentially -- we're going to go down 20 -- we're going to go down -- my
apologies. My eyes are blurring on me. But we're going to be going down 25th Avenue
Southwest, then we will come down 39th and then --
HEARING EXAMINER DICKMAN: You're going to go this way?
MS. JAHN: We're essentially going to run a C around, and then we'll switch over to the
west side of Collier Boulevard.
Next, please.
So you can see at 2560 39th Street Southwest -- and this test was performed using a
balloon by -- this was performed using a balloon by Michael Gould. His report is on file for your
review, and as you can see, the intervening vegetation here basically obscures the monopine.
Next, please.
This -- this view is at 2560 39th Street as you move between the trees just to show the
visibility. And as you go in there, you can see the monopine through the canopy, so...
HEARING EXAMINER DICKMAN: Is that it right there?
MS. JAHN: That is correct.
And on all of these photo simulations, you can see the balloon test photo in the upper
left-hand corner. They flew an orange -- they flew an orange balloon, and you can also see the
arrow pointing to it.
Next, please.
This is visibility as you're coming under the power lines along 39th Street, and you can see
the canopy is visible.
Next, please.
This is visibility as you proceed further along 39th Street, and you can see the canopy is
visible above the tree line, similar scale and bulk to -- from these perspectives to the pines in the
area.
Next, please.
And then as you proceed along.
Next please.
This is turning from the Cracklin' Jack's restaurant.
Next, please.
And then as you proceed further south along 39th Street.
Next, please.
HEARING EXAMINER DICKMAN: Quick question.
MS. JAHN: Yes.
HEARING EXAMINER DICKMAN: So is this about where they fall from? You said
the towers are designed to fall over on themselves. Is that at that base here or --
MS. JAHN: So the way that the -- the way that it is described in the -- without wanting to
become an expert, per se, but --
HEARING EXAMINER DICKMAN: I just asked the question.
MS. JAHN: Anyways, yes. So there's a crimp point at 72 feet from the top; it folds over
upon itself.
HEARING EXAMINER DICKMAN: Gotcha.
MS. JAHN: So you would see further up into the canopy, yes, sir, because that canopy's
starting at 60 feet.
HEARING EXAMINER DICKMAN: Gotcha, okay.
December 14, 2023
Page 18 of 30
MS. JAHN: Next, please.
And then as we just proceed around. And, of course, these are all in your record, and
during the presentation -- during the preparation of your order, you can compare these to the maps.
HEARING EXAMINER DICKMAN: Yep.
MS. JAHN: All right. Next, please.
HEARING EXAMINER DICKMAN: And just so you know, I think we counted 324
pages of documents that are part of the record. So all of the stuff is in the record. I've looked at
it.
MS. JAHN: Then I will not belabor this for you.
But, essentially, for the benefit of the public at least, it's meant to take and appear as a taller
three; something along the lines of a Norfolk pine.
There's also line-of-sight analyses just to show what the visibility would look like from the
closest possible properties, because we can't go onto those properties and take photos, per se, but
we can use, essentially, geometry to provide a reasonable calculation of what that looks like.
I'm going to skip ahead to my RF maps. For T-Mobile's purposes, this is a concurrency
project. They're essentially trying to keep up -- those are the line-of-sight analyses.
Next, please. Next and next, and then we'll be at the RF package.
So T-Mobile provided both an analysis of your code's default 6-mile ring, which is on
another map in the area. But this actually is the analysis of T-Mobile's search ring, which is
presented to you as the lesser effective radius. All cell towers are inherently local.
And it lists all the towers in the area. You can see the purple spot. That is the proposed
monopine. There is an orange spot to the north. That is a tower at 4111 Green Boulevard and
actually the next handoff north.
In between the purple spot and the orange spot is a magenta spot called -- labeled as
"flagpole," and that's where T-Mobile is currently collocated. They are intending to leave that
tower and come over to the monopine for the purposes of being able to deploy the antennas and
head frame -- or the antennas and head end equipment, radios and the like, that are able to keep up
with the traffic density in the area.
You have a full written report on that. If you would like additional testimony, then I
would need to continue the hearing, and I could provide an RF engineer.
HEARING EXAMINER DICKMAN: That's fine.
MS. JAHN: All right. And, of course, you have your surrounding towers shown in the
area.
Next, please.
This is the 6-mile radius because your code requests it. This is not something that you see
in other jurisdictions. Again, the tower cannot reach six miles. You can see that on the maps that
I will show you.
Next, please.
So you can see the current 5G service as of the time of submitting the application, and the
spots on this map correspond to the previous map that I showed you. So the purple spot is the
monopine. The orange spot is at 41 -- 4111 Green Boulevard tower.
In this map, green is reliable service coverage, and then yellow is moderate, red is poor,
and that is all described in detail in the report that is on file.
At the time that they provided this packaged, the 4111 Green Boulevard tower was not yet
on air, but they did provide a map showing what it would look like with it on air.
Next.
This is more akin to the conditions that you see currently. And so as you can see, even
from 4111 Green Boulevard, you can't reach to the south to fill this gap area.
Next, please.
And then you can see how the gap closes with 4111 Green Boulevard.
HEARING EXAMINER DICKMAN: This is all 5G service or just T-Mobile?
December 14, 2023
Page 19 of 30
MS. JAHN: That is T-Mobile 5G service, so...
HEARING EXAMINER DICKMAN: Gotcha.
MS. JAHN: Next, please.
This is additional data that is provided just showing traffic -- just showing different traffic
densities and strengths in the area.
Next, please.
And this also shows sector loading. This all -- this all corresponds with the report that is
on file.
Next, please.
And traffic density. And you can see that it is -- Golden Gate City is highly dense, and
then as you proceed out into the Urban Estates, it drops off, but there is still a good deal of density.
Next, please. And next.
So moving forward -- so this is just showing the different sectors that are currently trying
to service the area, and that's in the discussion of capacity loading.
Essentially, communication towers work like roads where they can only handle so much
traffic, and when you overburden them, they don't function. So that's important, especially since
T-Mobile is required to provide E911 locationing servicing. So this is -- I respectfully submit this
is an essential service. The tower has to have -- the towers have to have capacity to take the calls,
whether it's your commercial -- your everyday life stuff or your 911 stuff.
So in addition to closing the gaps that you saw, this will also offload traffic from
neighboring towers to the south and the west so that way they're able to meet the traffic. They're
able to perform better with the traffic demands that are on them.
Next, please. Next.
Anyways, just to go into some housekeeping, we've provided in the record an analysis of
the properties that are researched as alternates within T-Mobile's search ring. So they went
through just generally following the reasonable site acquisition standards that you see in the least
intrusive means test --
THE COURT REPORTER: I'm sorry. The what test?
MS. JAHN: Least intrusive -- I'm sorry. Least intrusive means test and
reasonable -- reasonable person standard for site acquisition agents.
If you would like, I could provide case law for you to judicially notice.
But, anyways, they went through and essentially knocked on doors and wrote letters and
stuff, and they provided analysis of all parcels within the ring that would be eligible under the code
for development and showed how they got to this parcel.
We also have an FAA determination of no hazard on hand showing that the monopine will
be unlighted. It will be completely dark at night.
And then we also have 911 call statistics on hand. In 2021, 83 percent of 911 calls came
from wireless numbers.
This is a graphic from the site acquisition methodology letter just generally showing how
few parcels within the search ring actually qualify under the code, so...
Anyways, I will not belabor the variance elements. You have your expert staff's analysis
as well as my analysis on record. We do agree -- we do agree to staff's proposed conditions of
approval and adopt them by reference into our presentation in chief, and we also adopt staff's
analysis into our presentation in chief.
I am available for any questions that you may have. Thank you for your time, and I
reserve time for rebuttal.
HEARING EXAMINER DICKMAN: Yes, please. Yeah, stick around. Don't go
anywhere. I mean, you can have a seat, obviously.
Can we open it up to public comment?
MS. PADRON: We have a total of four in-person speakers.
HEARING EXAMINER DICKMAN: Great.
December 14, 2023
Page 20 of 30
MS. PADRON: Our first speaker is Cindy Carroll.
HEARING EXAMINER DICKMAN: Good morning.
MS. CARROLL: Good morning. It's a pleasure to be here.
HEARING EXAMINER DICKMAN: By the way, if I look away or look down or look
that way, please don't take offense because I am listening. I'm just -- I'm also looking at
documents as I go, so...
MS. CARROLL: I completely understand.
HEARING EXAMINER DICKMAN: Thank you.
MS. CARROLL: So my name is Cindy Carroll, two Rs, two Ls. I reside at 3870 25th
Avenue Southwest.
And to get you oriented, the east property line of Cracklin' Jack's is my side lot line.
HEARING EXAMINER DICKMAN: Okay.
MS. CARROLL: My first concern -- and this is an academic one that I think that the
county should consider -- is the extraordinary reduction in setbacks that may set a precedent for
petitions and requests in the future.
The second thing I want to point out is the unusual nature of the C-2 zoning of the
Cracklin' Jack's property. And you can see from those aerials and the zoning maps the properties
adjoining and adjacent and surrounding are all "E" Estates zoned residential properties and have
been so since the '70s when the county placed Estates zoning over all of that land.
HEARING EXAMINER DICKMAN: So everything around it is Estates except for
Cracklin' Jack's; is that what you're saying?
MS. CARROLL: Correct.
HEARING EXAMINER DICKMAN: So when did Cracklin' Jack's -- is that a non- --
MS. CARROLL: Cracklin' Jack's has a very long history. It was Cracklin' Jack's. Prior
to that it was Porky's Last Stand. Prior to that, it was Four Walls Tavern. And that kind of goes
back through my history as I've lived here my entire life. It was built -- the building, we think,
was a house to begin with, became a tavern, and likely became that tavern prior to the 1974
downzoning of the Estates area. So it's something of an albatross, an outlier.
HEARING EXAMINER DICKMAN: We'll get to -- and I appreciate -- I'm not trying to
interrupt you. But just so the record's more smooth, I'll ask those questions to the county or
counsel for the applicant to find out a little bit more about the history of the zoning, but I
understand what you're saying.
MS. CARROLL: Understood.
So aside from the precedent that may be set, it is -- it will be directly in the view from my
property. It has -- and I must disclose that I am a state-certified residential real estate appraiser in
practice in Collier for more than 35 years and an expert witness in Circuit Court.
The presence of a communication tower in such close proximity to residential properties
has a negative effect on property value, and this is documented and has been for decades by
extensive studies across the country.
HEARING EXAMINER DICKMAN: And you're a certified appraiser?
MS. CARROLL: State-certified residential appraiser, yes.
HEARING EXAMINER DICKMAN: Thank you.
MS. CARROLL: HUD identifies cell towers as a nuisance and a hazard. Properties
adjacent to cell towers of this nature, if the property's appraised, this is a clear disclosure item that
must be addressed in real estate appraisals. So all of that is aside from my own personal feelings
about having to look at that tower, having the shadow cast by that tower falling on my strategically
placed swimming pool and just the unusual nature of that C-2 zoned parcel in a residential
neighborhood.
HEARING EXAMINER DICKMAN: Okay.
MS. CARROLL: Thank you.
HEARING EXAMINER DICKMAN: Thank you very much.
December 14, 2023
Page 21 of 30
Next.
MS. PADRON: Our next speaker is Larry Lawrence.
HEARING EXAMINER DICKMAN: While Mr. Lawrence is coming up, I want to
mention that I am able to consider layperson testimony as long as it's factual, fact-based, and
something that the layperson is personally familiar with. So that is something that, in a
quasi-judicial hearing, I can consider.
So, Mr. Lawrence.
MR. LAWRENCE: Good morning. My name is Larry Lawrence, and I live on 25th
Avenue Southwest. I also object to the zoning possibility change for the variance for several
reasons. The setback, which is -- they're asking for quite a bit, and my property is less than -- I
have a common line also with this property.
HEARING EXAMINER DICKMAN: Which side are you on?
MR. LAWRENCE: I'm sorry?
HEARING EXAMINER DICKMAN: Which side are you on?
MR. LAWRENCE: I'm on the east side.
HEARING EXAMINER DICKMAN: You're on the east side.
MR. LAWRENCE: Yes.
HEARING EXAMINER DICKMAN: Okay. Thank you.
MR. LAWRENCE: The -- just a sidebar that came to my attention a moment ago, the
photographs that were shown from the distance was well over 300 feet away. My property has a
common line and so do several other properties adjacent to that where they can step out of their
backyard and not be more than 150 feet from the tower. Anyway...
Let's see. I agree with and have done a little bit of research regarding depreciated value
being adjacent to this property tower, and I'm also concerned about the -- well, the EMF
frequencies that would be generated by this along with the power lines that already generate EMF
signals. And I didn't take the measurement on that, but I -- like I say, a common line there and the
power line easement is part of the property and backs right up to the side of my house.
That's about all I can really say at this moment, I mean, without jumping all over the place,
and I apologize for that.
HEARING EXAMINER DICKMAN: That's okay. Are you finished? I don't want to
rush you.
MR. LAWRENCE: Well, I know, but --
HEARING EXAMINER DICKMAN: Okay.
MR. LAWRENCE: Thank you.
HEARING EXAMINER DICKMAN: All right. Thank you very much. Thanks for
being here. Who else do we have?
MS. PADRON: Our next speaker is Gary Mitchell.
HEARING EXAMINER DICKMAN: All right.
MR. MITCHELL: Good morning.
HEARING EXAMINER DICKMAN: Good morning, Mr. Mitchell.
MR. MITCHELL: I think it's still morning.
HEARING EXAMINER DICKMAN: I think it is.
MR. MITCHELL: Been here quite a while.
HEARING EXAMINER DICKMAN: It feels like it.
MR. MITCHELL: Yeah. I live on 3899 27th Avenue Southwest. And I was wondering
how this would affect the cell phone, you know, static or, you know, how does it go? Has there
been any homework done on this? Interference, I guess, is the word I'm looking for. I used to be
an engineer at General Motors, so I have a little idea of how things work. That's about it. Thank
you.
HEARING EXAMINER DICKMAN: Thank you.
MR. MITCHELL: It covered -- everybody up here covered everything pretty good for
December 14, 2023
Page 22 of 30
me.
HEARING EXAMINER DICKMAN: Thank you for being here.
MR. MITCHELL: Sure.
HEARING EXAMINER DICKMAN: All right. Who's next?
MS. PADRON: Our last speaker is Kenyon Egbert.
MR. EGBERT: Good morning. My name is Kenyon Egbert. I live at 2540 39th Street
Southwest, the property adjacent to Cracklin' Jacks on the north.
HEARING EXAMINER DICKMAN: North. North boundary.
MR. EGBERT: Our property line runs full length. So I object to the location of this --
HEARING EXAMINER DICKMAN: One second. Can you spell your name for me. It
was Kenyon?
MR. EGBERT: K-e-n-y-o-n; Egbert, E-g-b-e-r-t.
HEARING EXAMINER DICKMAN: All right. Thank you very much.
MR. EGBERT: Happens all the time.
HEARING EXAMINER DICKMAN: That's okay. Sorry.
MR. EGBERT: You're not alone.
I object to the location, as did Ms. Carroll, that all of the properties around and surrounding
and for miles and miles around are all residential, low-density Estates lots. This is the only
commercial space for 15, 20 miles if you move east of Collier Boulevard.
I'm also concerned, has FPL been notified and agrees with the location of a cell tower so
close to the height and voltage transmission lines that run from a transfer station just north of 15th
Avenue? This runs all the way to Marco Island, services East Naples, and part of South Naples.
Have they given approval for this type of an installation that close to their transmission lines?
Also, I have been in this area for some time, and we have a business located at -- on
Kirkwood Avenue and Avondale. They just recently -- and I was there, watched the whole
process -- replaced a cell tower adjacent to an existing cell tower to increase the capacity and the
range of the equipment and added the 5G technology in the same location, left the tower in place,
built the new tower, put all the equipment onto it and then took the whole tower down.
The tower at what they called the Taco -- or Senior Tequila could also -- has enough space
around it. I don't know if we can get to a map that shows that current location. I didn't present
one.
HEARING EXAMINER DICKMAN: Are you able to get that up?
MS. PADRON: What's the location?
MR. EGBERT: Where the current tower is, the mono tower. I forget the name of the
plaza.
HEARING EXAMINER DICKMAN: While she's doing that, were you -- did you have
exhibits you wanted to put into the record?
MR. EGBERT: I did, but I only printed them out last night because I've been really busy.
I'm -- my background is I'm a contractor.
HEARING EXAMINER DICKMAN: I'm just trying to --
MR. EGBERT: -- mechanical --
(Simultaneous crosstalk.)
HEARING EXAMINER DICKMAN: Because the county had indicated that there were
exhibits that someone wanted to put in the record.
MR. EGBERT: The tower -- this is Senior Tequila here. This plaza is on 39th or on
Collier Boulevard. The Parkway is to -- located to the south. It's 11985 Collier Boulevard.
HEARING EXAMINER DICKMAN: If it's too difficult to find the right slide, then let's
just go forward.
MS. PADRON: I've actually got it.
HEARING EXAMINER DICKMAN: Oh, okay.
Eric, did you have the exhibits?
December 14, 2023
Page 23 of 30
MR. ORTMAN: I do, Mr. Dickman.
HEARING EXAMINER DICKMAN: Okay. Are they his exhibits?
MR. ORTMAN: They are Mr. Lawrence's.
HEARING EXAMINER DICKMAN: Oh, Mr. Lawrence's exhibit. Okay.
Mr. Lawrence, there were -- okay. We'll get to that. Let me call him back up real quick when
he's finished. Are you finished?
MR. EGBERT: No.
HEARING EXAMINER DICKMAN: No, okay.
MR. EGBERT: Currently, there's a cell tower located right here in the corner of this
property.
HEARING EXAMINER DICKMAN: Okay.
MR. EGBERT: The monopole with the flag on it.
HEARING EXAMINER DICKMAN: Uh-huh.
MR. EGBERT: And my suggestion is is -- I left the lady over here an example of where
they were doing the towers simultaneously, but I don't have another copy there, but...
HEARING EXAMINER DICKMAN: Sir.
MR. EGBERT: This is the existing tower, and this is the new tower that they put in and
assembled, and then they took this one down at Kirkland Avenue.
MS. PADRON: That's Kirkland Avenue.
HEARING EXAMINER DICKMAN: Okay, sir. If you're going to testify, you need to
say everything here so that we can capture it.
MR. EGBERT: At the corner of Avondale and Kirkwood, a mono tower was put up, and
an old shorter tower was taken down while they were in conjunction with -- and I believe at this
intersection or where this existing tower is, they could conduct the same installation of a new
tower. It would give them the coverage that they're seeking in the area around Golden Gate
Parkway because it would be much closer.
HEARING EXAMINER DICKMAN: Okay. So if I hear you correctly, you're
suggesting that there is an alternative site --
MR. EGBERT: A couple.
HEARING EXAMINER DICKMAN: -- other than the proposed site; is that correct?
MR. EGBERT: Correct.
HEARING EXAMINER DICKMAN: Okay.
MR. EGBERT: And also, as part of the presentation that they gave, they showed the golf
course in Golden Gate City. There's an existing tower there that's part the Collier County
property, not that they purchased, but a piece of the property that they've always owned. It's like a
utility substation. I believe it's water distribution, but I don't know for sure. But on that golf
course, there is an existing tower there. And the -- and the distance to residential area is way
beyond the required variance --
HEARING EXAMINER DICKMAN: Okay.
MR. EGBERT: -- for easements.
HEARING EXAMINER DICKMAN: Okay.
MR. EGBERT: Okay. And I think -- well, given the testimony that she gave, I was
thinking that they could move further south in commercial areas that are located below that south
of the canal closer to I-75, but the coverages they showed would not give them the full coverage in
the Golden Gate City area, which is what they're looking for, so...
The location that they are suggesting on -- at Cracklin' Jack's is really close to Cracklin'
Jack's septic system, and given that that septic system drains into the subsoils, I'm curious as how
they're going to maintain the stability if, for instance, the septic system keeps softening the soil or
creates a situation where a sinkhole may develop, and has that been taken into consideration in the
structural nature of the tower? I understand that there's a breakpoint in wind loads, the 75 feet, but
if the subsoils disintegrate or because of the septic system leaching into the subsoils, is it going to
December 14, 2023
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be able to maintain the structural integrity of the entire 150-foot tower?
HEARING EXAMINER DICKMAN: Uh-huh.
MR. EGBERT: And those are my concerns. I mean, I live just north of there, and I don't
agree with varying -- changing variances, setbacks for projects. If I were to build -- I want to
build a three-car garage in my house, that would require a setback that would roundly be -- would
turn down just because they're pretty strict with the residential setbacks. So I just want them to
maintain the setbacks and choose a different site.
HEARING EXAMINER DICKMAN: Thank you. Thank you for being here.
MR. EGBERT: That's it.
HEARING EXAMINER DICKMAN: Mr. Lawrence, would you please come up. The
county had said that you have exhibits you wanted to put into the record. You didn't mention that.
MR. LAWRENCE: He did, but he was going to make copies of them for me because I
did not bring them.
HEARING EXAMINER DICKMAN: So he's got copies, I want to make sure counsel for
the applicant has copies.
MR. ORTMAN: Eric Ortman, for the record. Yes, I emailed a copy of all of these to
Mattaniah yesterday after I received them.
HEARING EXAMINER DICKMAN: Okay. So can I have a copy of them, just so that
they're in the record?
Mr. Lawrence, what exactly are these? Speak into the microphone, please.
MR. LAWRENCE: I'm sorry.
They're referencing the appraisals, some of -- one or two of them that I provided. Some of
them are making reference to the EMF signals. Some of them are relating to the hazard. There's
one there that I noticed on the top that talks about the plastics that's used or whatever it is in these
trees that may cause some issues. I have a piece of one of those limbs laying here that, when I
went to the tower at Green, it had dropped dozens or maybe 50 pieces of this stuff off onto the
asphalt parking. So they're laying all over the parking lot where that one is located.
HEARING EXAMINER DICKMAN: Okay. So I have four documents here. They
have -- that you did testify already to your concern about EMF frequencies and other health things.
These are just -- these are documents that you're putting into the record that are -- support -- that in
your estimate support that. So I'll accept these into the record. I just want to confirm.
MR. LAWRENCE: May I make one more comment?
HEARING EXAMINER DICKMAN: Very quickly.
MR. LAWRENCE: I would like to see the golf course considered as a referenced location
because it's got plenty of land and not right next to us.
Thank you.
HEARING EXAMINER DICKMAN: Okay. Thank you for your time.
All right. Any other speakers?
MS. PADRON: We do not have additional speakers.
HEARING EXAMINER DICKMAN: All right. Well, we're going to close the public
hearing then, and, Counselor, would you please come up, and we're going to go through these.
First of all, I want to make sure you have had -- you've got copies of these. Do you want
to take a look at them to make sure --
MS. JAHN: Mattaniah Jahn, again. If I may, if they are the articles and the like, then
those I did receive from Mr. Ortman. I saw a map that was -- looked like it was passing along
that. I would -- I don't believe I received, or it may have came in after I was --
HEARING EXAMINER DICKMAN: I don't have a copy of that.
MR. ORTMAN: That map was just introduced by one -- Eric Ortman, for the record -- by
one of the previous speakers. I have the copies right here.
HEARING EXAMINER DICKMAN: Okay.
MS. JAHN: May I just take a quick glance just for the sake of --
December 14, 2023
Page 25 of 30
HEARING EXAMINER DICKMAN: Sure, absolutely. They didn't ask to put it in the
record, but...
MS. JAHN: Oh, okay. All right. Thank you.
HEARING EXAMINER DICKMAN: So a couple of things came up, but the first thing
that I want to understand right off the bat is Cracklin' Jack's. So I'm guessing this is a legal
nonconformity. Is that -- am I correct? I mean, can somebody educate me to how the C-2 zoning
came to be and then, secondarily, is putting -- if it is a legal nonconforming use or something like
that, is putting a tower such as this expanding that?
MR. BOSI: Mike Bosi, Planning and Zoning director.
It's not a legal nonconforming use. It is a zoning that has been found consistent by policy.
In 1989, when we adopted the current Growth Management Plan, we had a policy which we
concentrated all of our commercial development within our activity centers. That's where the
commercial development is steered to or guided to by our Future Land Use Map and our Future
Land Use Element.
But we recognized that we had lots of commercial strip zoning that was outside of those
activity centers.
MR. LAWRENCE: We can't hear you.
MR. BOSI: That were outside of those activity centers.
MR. LAWRENCE: Thank you.
MR. BOSI: Those were reevaluated during the zoning evaluation process, and they were
found to be consistent by policy. They're not consistent with the current GMP; they're consistent
by policy. Therefore, it's a legal zoning district, and it's entitled to all of the uses that are
contained within that C-2 zoning district. A telecommunication tower is one of those permitted
uses.
HEARING EXAMINER DICKMAN: Okay.
MR. BOSI: So that's how this anomaly of a commercial zoning has survived in terms of
its designation is basically through the --
HEARING EXAMINER DICKMAN: Okay. So I understand. So in other words, when
the new zoning came through, instead of declaring this a legal nonconforming use, you actually
gave it its proper zoning and left it in place?
MR. BOSI: Mike Bosi again.
Clarification. We did not go through a zoning -- it wasn't a reevaluation of the zoning. It
was a reevaluation of the existing zoning against the Future Land Use Map. That's where the
inconsistency, and that's where it's recognized that it's not consistent with the Future Land Use
Map, but it's consistent because it predated that Future Land Use Map.
HEARING EXAMINER DICKMAN: Okay. So if it has a C-2 zoning, it's there legally,
it's entitled to all of the -- you know, the permitted and conditional uses that goes along with that
type of zoning?
MR. BOSI: Correct, correct.
HEARING EXAMINER DICKMAN: All right. Thank you. I understand. Now, all
right. So we got that squared away.
MR. BOSI: Okay.
HEARING EXAMINER DICKMAN: And so there are a couple of things that came up.
I'm just going to list what I have written down. I'm sure you have a list.
You know, a couple of folks here are neighbors, and they're concerned about property
values. They're concerned about the -- any shadow effects on them, the EMF frequency or any
health issues related or in combination with the existing power lines, and then I think there were
some questions about alternative sites.
And then, finally, there was a question about the structural integrity that may be
compromised because Cracklin' Jack's septic system is in the rear of the restaurant, and I'm not
quite sure where that is.
December 14, 2023
Page 26 of 30
But if you could kind of help. Let's just address those, if you don't mind.
MS. JAHN: Yes. So -- and I apologize if go out of order.
HEARING EXAMINER DICKMAN: Go ahead.
MS. JAHN: Just to kind of move through some things.
HEARING EXAMINER DICKMAN: I'll check them off as you go.
MS. JAHN: All right. So starting off with alternate sites. You have a site acquisition
methodology letter in the record that goes through parcel by parcel showing -- you know, showing
whether those sites could be built upon. Some of them, the property owners, like the property
owner at the golf course, were not interested.
HEARING EXAMINER DICKMAN: They were not?
MS. JAHN: That is correct, and that is in the notarized letter that is in the record.
HEARING EXAMINER DICKMAN: Okay.
MS. JAHN: Some of them, they're fully occupied by their parent use, and if you were to
try to put a tower and the compound in there, it would -- you would have to remove the parent use,
part of it at least.
HEARING EXAMINER DICKMAN: So I have a question about that. So if you put a
tower such as this in a golf course, does it jeopardize the equipment that ultimately is put on the
tower vis-a-vis bad golfers who hit golf balls.
MS. JAHN: You know, that's the first time in my career I've been asked that question.
Obviously, if you're, you know, aiming and targeting at it, you're going to subject that equipment to
abuse.
HEARING EXAMINER DICKMAN: Yeah.
MS. JAHN: You know, those covers, you know, on the antennas are hurricane resistant,
but if you're running projectiles at them, they are, at the end of the day, Fiberglass.
HEARING EXAMINER DICKMAN: Sure. I didn't know if there was a policy to avoid
golf courses.
MS. JAHN: It's -- the property owner was not interested.
HEARING EXAMINER DICKMAN: Gotcha. Okay.
So the methodology that -- in terms of doing the alternative site analysis is that you
identify possible sites where a tower could go. You go -- you inquire with the property owner, and
they say yes, no, maybe, right; is that how it works?
MS. JAHN: Correct.
HEARING EXAMINER DICKMAN: Okay. So you do due diligence in terms of where
else we could go?
MS. JAHN: Yes, that is correct.
HEARING EXAMINER DICKMAN: Okay.
MS. JAHN: And this has usually been -- before it hits my desk for zoning and then
spends, you know, a year or two with the county in this discussion that leads up to the discussion
today, there's a year and a half of due diligence just to get to where they are.
So one thing that was mentioned is an industry term called a drop and swap, replacing an
existing tower, and that's a very nice solution. It's very easy, for the most part. Sometimes you
have to go back through zoning. And, you know, I don't have details on it in this instance. If you
want, I can request a continuance and bring in T-Mobile to testify on that. But at the end of the
day, when they aren't doing a drop and swap, it's because they can't, so -- and that's usually the
tower owner's unwilling.
HEARING EXAMINER DICKMAN: Okay.
MS. JAHN: All right. Have I adequately addressed alternate sites yet?
HEARING EXAMINER DICKMAN: Yes. Tell me a little bit about health and safety,
please.
MS. JAHN: Yes. So you have certification from T-Mobile that they operate their
network within FCC health and safety guidelines. And, you know, this is a subject where I
December 14, 2023
Page 27 of 30
generally try not to discuss it in case in chief unless people are bringing it up because there's a
federal preemption there. So it really doesn't have any part in our discussion today. And I would
ask that you judicially recognize the Telecom Act of 1996 codified at 47 U.S.C., Section 332.
HEARING EXAMINER DICKMAN: Yes. So in other words, folks, the law has given
towers, whether they're small cellular towers or towers such as this -- the public policy has
recognized that people are using not just cell phones but iPads and all kinds of things, and that if
local governments were to zone them -- exclude them from zoning, it would be a public disservice.
Am I kind of phrasing that correctly?
MS. JAHN: It would be a disaster from an interstate commerce perspective. What, we
have 67 counties in the state of Florida, and if each one had their own RF emissions standards, you
couldn't create this national communications network.
HEARING EXAMINER DICKMAN: So our federal government stepped in and created
some very strict rules that local governments have to follow.
MS. JAHN: That is correct, sir.
HEARING EXAMINER DICKMAN: All right.
MS. JAHN: All right.
Shadow. I mean, these towers are, like, eight feet across, so, you know, they're very
small. If you would like additional documentation, I would have to request a continuance. I'm
not yet sure -- I'm sure there's a professional out there who can take and forecast what that would
look like.
HEARING EXAMINER DICKMAN: Is that -- let me ask the county. Is that part of the
required application, to show shadow studies when doing these types of towers?
MR. BOSI: Mike Bosi, Planning and Zoning director.
That is not a requirement of the code in requesting a new telecommunication. It's more of
the opportunity for collocation is where we primarily stress. We want to make sure that they
exhaust all of the existing tower infrastructures available within the local area to satisfy the request
before we would allow for another tower to be proposed.
HEARING EXAMINER DICKMAN: Okay. All right.
Property values. What do you know about property values?
MS. JAHN: So property values, for what it's worth, in the documents that I have seen and
presented, and if you -- in the past, you know, towers do not affect property values either in a
positive or negative light. They're just a piece of infrastructure, and that comes from reports based
off of comparatives analysis, interviews with the realtors involved in the transactions and the like.
If you would like additional evidence on that and expert testimony, again, I could provide that, but
I don't have that today.
HEARING EXAMINER DICKMAN: Do you have any knowledge of -- you know, in
real estate worlds you have to disclose certain things when someone's buying something. It was
indicated that HUD -- it's a required disclosure when -- under the HUD standards.
MS. JAHN: So that was not a full and complete statement.
HEARING EXAMINER DICKMAN: Okay. What do you know about this?
MS. JAHN: In the materials -- well, I don't even have to go -- I mean, to my -- I don't
have to go to my base knowledge. In the materials, it says if you're within the easement of a
power line or the easement of a tower, you have to disclose it.
So that's all about physical inter -- that's all about physical interplay with the fall zone.
That's where that applies. So -- but -- so I respectfully submit that that HUD condition doesn't
apply in this instance. There's no structures within the fall zone, but --
HEARING EXAMINER DICKMAN: I understand. So I guess the question -- I mean,
because I thought -- I found it somewhat compelling that if I'm an adjoining property owner, and
everything around this parcel is residential, and if they want to sell, the requirement is to say, by
the way, there's a tower over there.
MS. JAHN: To my knowledge, there is no requirement to disclose any of that.
December 14, 2023
Page 28 of 30
HEARING EXAMINER DICKMAN: Okay.
MS. JAHN: So -- and I also had --
HEARING EXAMINER DICKMAN: Okay.
MS. JAHN: -- property appraisers testify in the past, and they've never -- that's just never
been an issue.
HEARING EXAMINER DICKMAN: Okay. All right.
Is there any problem with the existing septic system in any way causing a problem with the
structural integrity? Just address that.
MS. JAHN: Yeah. So I actually reached out to the engineer to double-check this and run
this to earth yesterday.
But there are no issues with that. You know, that's -- that's something that can be solved
through Florida Building Code, which we're getting ready to update. By the time we come in,
we'll have the newer standards, the 2023 standards. But, I mean, if you can build a cell tower in
the sands of the Louisiana Deltas and have them hold together, you can build a tower next to this.
And essentially what it is, it's a case font [sic] that goes down to the limestone underneath.
HEARING EXAMINER DICKMAN: Okay. Is this -- would this be -- this is directed, I
guess, to the county. Would this be part of the -- you're doing a simultaneous Site Development
Plan. All of this would be looked at carefully?
MR. BOSI: Mike Bosi, Zoning director.
And that would be part of the building permit process, you know, the soil analysis, in terms
of how it's anchored, the foundations. All of those things would be required to be -- to be
analyzed, to be reviewed from our -- from our technicians.
HEARING EXAMINER DICKMAN: Gotcha.
MS. JAHN: And when I do come in for building permits for towers, I provided you -- that
soil analysis is called a geotechnical analysis. It is an examination of borings at the site, and then
sign and sealed by an engineer discussing, you know, the soil's ability to hold load.
HEARING EXAMINER DICKMAN: All right. I believe that was about it. I mean,
those were a lot of questions. I like -- I just -- I think it's important that if the neighbors take the
time to come out and speak, that at least we address those to the extent we can.
But for me, again, at the end of the day, I'm being asked to evaluate a variance, and I have
to look at the variance criteria that has been -- it's in the code, and I have to decide whether there's
been enough substantial competent evidence to approve that variance.
I mean, we talked about a lot of things. And I will tell you, you know, I've heard a
number of tower cases, and they always bring out neighbors who are concerned. And I'm sure
you've experienced this in your career; you've been doing this for quite some time. So it's not -- it
shouldn't be a surprise to you that the neighbors are -- have some trepidation about this, right?
MS. JAHN: Of course.
HEARING EXAMINER DICKMAN: And I've seen it. We've all seen it. I've had
several cases here. We all love our cell phones and wireless technology, but we don't want the
tower in our backyard.
MS. JAHN: That's the quintessential NIMBY-ism which, under Florida case law, is not
competent substantial evidence. I'm specifically thinking of a case called Benjamina Nurseries, if
you'd like me to quote that.
HEARING EXAMINER DICKMAN: You're welcome to submit. Actually, I would like
for you to submit any case law that relates -- I mean, I would like to see, if you could -- you
mentioned the federal law, the preemption laws.
MS. JAHN: Yes, sir.
HEARING EXAMINER DICKMAN: If you could submit that through the county, and
they'll forward it to my office. And then if you have any -- if you have case law on point that's
still good regarding NIMBY-ism and cell towers, I would like to see that.
MS. JAHN: Yes, sir.
December 14, 2023
Page 29 of 30
HEARING EXAMINER DICKMAN: You know, these are just difficult decisions
because -- and, frankly, I appreciate the industry now is trying to mimic landscape instead of just
using highly technical-looking towers with lights on them and things like that. It's changed
dramatically, which -- and this is true for large towers and also small cell towers -- cell -- you see
them in urban areas all over the place and, frankly, you may not see them now because they're
so -- they mimic the landscaping or a tree or something like that.
So I think the industry seems to be trying, but, again, you know, these are difficult cases
because of just what they are.
MS. JAHN: For whatever my insight is worth, you know, this is akin to the electrification
of the U.S. when we brought the grid online. You know, we're at a point where we are trying to
bring what is infrastructure into an environment that exists instead of having been around 50 years
before you built anything. So it makes for these situations.
HEARING EXAMINER DICKMAN: And someday we may -- everything may be
hardened and put underground at some point, you know, but -- you know, for electrical wires,
maybe.
MS. JAHN: Maybe.
HEARING EXAMINER DICKMAN: Maybe.
MS. JAHN: It would be pretty.
HEARING EXAMINER DICKMAN: It would be wonderful. But, yes, I understand the
analogy. Thank you.
Do you have anything else?
MS. JAHN: I have nothing else.
HEARING EXAMINER DICKMAN: Okay. Nice job. It was nice to meet you.
MS. JAHN: Nice to meet you as well, sir.
HEARING EXAMINER DICKMAN: Thank you for being here, and I want to thank the
neighbors for coming out. I listened to you. I think you all did a wonderful job giving me a list
of things to consider. I appreciate it very much. I appreciate the county's processing this and
doing really well -- doing it really well and answering the questions.
So, all around, a good conversation about a difficult topic and putting me in a difficult
position of having to evaluate all this stuff and come up with a decision within 30 days, which I
will do.
MS. JAHN: Thank you for your time.
HEARING EXAMINER DICKMAN: All right. It's nice to see you.
Do we have any other items? That's it for today?
(No response.)
HEARING EXAMINER DICKMAN: Do we have any more meetings this year?
MR. BELLOWS: We are done for the year.
HEARING EXAMINER DICKMAN: We are done for the year. All right.
Well, I want to wish everyone a very happy holiday season; enjoy your time. Wait a
minute. We've got a party stopper.
MR. ORTMAN: Mr. Dickman, Eric Ortman, for the record. One of the speakers left
these copies. Do you wish them also?
HEARING EXAMINER DICKMAN: Yeah. Just pass them on, and I'll take -- I'll
consider the relevance of them.
Back to my speech on the holidays. So, anyway, I want to wish everybody a very happy
holiday. I want to thank the county, everybody here, who has supported me during the 2023 year.
It's been a good year.
I'm looking forward to 2024, and I hope everyone has as wonderful holiday, safe holiday.
Enjoy your families. That's what's really important in this lifetime.
So, all right. We're adjourned, and enjoy some candy and other things.
December 14, 2023
Page 30 of 30
*******
There being no further business for the good of the County, the meeting was adjourned by order of the
Hearing Examiner at 11:01 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.