HEX Final Decision 2024-20HEX NO. 2024-20
HEARING EXAMINER DECISION
DATE OF HEARING.
March 149 2024
PETITION.
Petition No. BDE-PL20230008785 —Request fora 9-foot boat dock extension from the
maximum permitted protrusion of 20 feet or 25 percent of the width of the waterway,
whichever is less, for waterways less than 100 feet in width, to allow construction of a boat
docking facility protruding a total of 29 feet into a waterway that is 80 feet wide. The subject
property is located at 295 West Avenue, also known as Lot 12, Block C, Little Hickory Shores
Unit 1, in Section 5, Township 48 South, Range 25 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner requests a 9-foot boat dock extension from the maximum permitted protrusion of
20 feet or 25 percent of the width of the waterway, whichever is less, for waterways less than 100
feet in width, to allow construction of a boat docking facility protruding a total of 29 feet into a
waterway that is 80± feet wide.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(4) of the
Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of
the County Administrative Code.
2. The public hearing for this Petition was properly noticed and conducted in accordance with all
County and state requirements.
3. The public hearing was conducted electronically and in -person in accordance with
Emergency/Executive Order 2020-04.
4. The public hearing was conducted in the following manner: the County Staff presented the
Petition followed by the Petitioner and/or Petitioner's representative, public comment and then
rebuttal by the Petitioner and/or Petitioner's representative. There were no objections to this
item at the public hearing.
5. The County's Land Development Section 5.03.06.H. lists the criteria for dock facility
extensions. The Hearing Examiner may approve, approve with conditions, or deny a boat dock
Page 1 of 6
extension request if it is determined that at least four (4) of the five (5) primary criteria, and at
least four (4) of the six (6) secondary criteria have been met.'
Primary Criteria.
1. Whether the number of dock facilities and/or boat slips proposed is appropriate in relation
to the waterfront length, location, upland land use and zoning of the subject property.
Consideration should be made of property on unbridged barrier islands, where vessels are
the primary means of transportation to and from the property. (The number should be
appropriate; typical single-family use should be no more than two slips; typical multi-
family use should be one slip per dwelling unit; in the case of unbridged barrier island
docks, additional slips may be appropriate.)
The recor°d evidence and testimony ji^om the public hearing reflects that the cr°iter°ion HAS
BEEN MET. The subject propero� is located within an RSF4 Zoning District, for which
this criterion allows up to h4)o slips. The proposed dockfacility comprises tivo triangular
docks that will support a single boat lift for the mooring of a single vessel.
2. Whether the water depth at the proposed site is so shallow that a vessel of the general
length, type and draft as that described in the petitioner's application is unable to launch or
moor at mean low tide (MLT). (The petitioner's application and survey should establish
that the water depth is too shallow to allow launching and mooring of the vessel(s)
described without an extension.)
The record evidence and testimony fr°om the public hearing reflects that the cri.terr.'on HAS
BEEN JULT. The applicant's expert stated that "water depths directly adjacent to the
seawall are not adequate for the proposed vessel to launch fr•oni, were it to be moored in
a trite shore parallel configuration, within 20 feet of the face of the seawall. "
3. Whether the proposed dock facility may have an adverse impact on navigation within an
adjacent marked or charted navigable channel. (The facility should not intrude into any
marked or charted navigable channel thus impeding vessel traffic in the channel.)
The r°ecor•d evidence and testimony fi•orn the public hearing reflects that the cr•iter•ior� HAS
BEEN MET. There is no marked or• charted navigable channel at or• adjacent to the
proposed project location. Therefore, no marked or navigable channels ivill be affected by
the proposed project.
4. Whether the proposed dock facility protrudes no more than 25 percent of the width of the
waterway, and whether a minimum of 50 percent of the waterway width between dock
facilities on either side is maintained for navigability. (The facility should maintain the
required percentages.)
The record evidence and testirnony from the public hearing reflects that the criterion HAS
NOT BEENMET. The applicant's expert stated "the proposed dockproject occurs at the
1 The Hearing Examiner's findings are italicized.
Page 2 of 6
end of a linear canal approximately 80 feet in lvidth. The dock itself will be constructed
entirely within 20 feet of the standard 20 feet/25 percent width -of -waterway restriction.
Only the vessel will overhang the protrusion limit. The vessel hill protrude 29 feet into the
tivaterlvay from the face of the seawall, or approximately 36 percent of the width of the
waterway. The property opposite the project site has only a small marginal dock on the
canal 's terminal side, so 50 percent of the waterway will be maintained for navigation. " A
more cautious analysis is mathematical. The subject dock is located in the southeast corner
)fan 80 foot canal terminus. Twenty-five per°cent is 20 feet. The proposed dock protrudes
29 feet or° 32. 65%. Directly opposite the proposed dock is a property lvith a 5' x 26' dock
parallel to the western terminus of the canal. Presumably a vessel would moor along side
this dock, with the vessel adding another 8' feet beam (approximately). Together, the
vessel and dock Would be protrude approximately 13 'into the water-vvay f °om the western
seaivall. This would be a separation of 22' beNa een the proposed dock and opposite
existing dock. Fifth) percent of the waterway equals 40'. Primary criteria 4 is a two part
test (note the use of the word "and'). Mathematically, proposed dock fails the first part
and fails the second part, even though it is true the proposed lift is angled to the canal
corner to maximize navigability) and minimize impacts to the neighbor across the canal.
5. Whether the proposed location and design of the dock facility is such that the facility would
not interfere with the use of neighboring docks. (The facility should not interfere with the
use of legally permitted neighboring docks.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEENMET. The applicant's expert stated that "the docking facility has been specifically
designed so as to optimize navigation to both the subject property and to the neighboring
dock to the west. The neighbor to the north should remain unaffected by the proposed
project design. Our opinion is therefore that the design as proposed is the most preferred
so as to maintain public navigation of the area. " The Hearing Examiner agrees.
Secondary Criteria:
1. Whether there are special conditions not involving water depth, related to the subject
property or waterway, which justify the proposed dimensions and location of the proposed
dock facility. (There must be at least one special condition related to the property; these
may include type of shoreline reinforcement, shoreline configuration, mangrove growth,
or seagrass beds.)
The record evidence and testimony f •om the public hearing reflects that the criterion HAS
BEEN MET. The applicant's expert stated that "the subject property is a corner lot and
so the shoreline is configured in an L-shape where ingress and egress can only occur
essentially f •om one side; the west. Standard lots in this area have I S foot setbacks. The
typical dock facilio) for the area therefore can utilize two combined side setback voids
(totaling 30 feet) for navigation to andfrom °om their docks. The subject pr•operiy, since it is a
corner lot, is required to provide only 7.5 foot side setbacks. This means that the combined
side setbacks available for utilization during ingress and egress of a vessel to the
Page 3 of 6
applicant's dock amounts to only 22.5 feet (the neighbor's 15 feet + the applicant's 7.5
feet). Furthermore, the west neighbor has constructed a dock so that their vessel will not
be able to navigate in and out of its slip if the full area within the subject property's side
setbacks is utilized. " The Hearing Examiner agrees.
2. Whether the proposed dock facility would allow reasonable, safe access to the vessel for
loading/unloading and routine maintenance, without the use of excessive deck area not
directly related to these functions. (The facility should not use excessive deck area.)
The record evidence and testimony from the public hearing reflects that the cr°iterior�HAS
BEEN MET. The applicant's expert stated that "the proposed facility will utilize only
approximately 324 square feet of decking, which is smaller than almost every other dock
on the canal. Therefore, we believe the decking proposed is not excessive and that this
criteria is met. " County planning experts concurred and stated "the proposed design
makes sense given the obstacles that i-mere encountered during the design of the subject
(acility. " The Hearing Examiner agrees.
3. For single-family dock facilities, whether the length of the vessel, or vessels in
combination, described by the petitioner, exceeds 50 percent of the subject property's
linear waterfront footage. (The applicable maximum percentage should be maintained.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The subject docking facilio) has been designed to accommodate a single 38-
foot vessel, LOA, and the subject property's linear waterfront is 85 feet; therefore, the
vessel will occupy less than 50 percent of the total waterfront.
4. Whether the proposed facility would have a major impact on the waterfront view of
neighboring property owners. (The facility should not have a major impact on the view of
a neighboring property owner.)
The record evidence and testimony jiormthe public hearing reflects that the criterion HAS
BEENMET. The applicant's expert stated that "the proposed dock crud vessel are located
in the corner of the caned and so should not cause any obstruction or impacts to views of
the neighbors at all. Furthermore, the use of the dock for private, single family
recreational purposes is not changing, and so our opinion is that any change in views
caused by the project will not be Inc jor•. " County planning experts concur and further note
that "there are no residences immediately adjacent to the water•ivay to the east, there is a
r•oadlvay separating the properties. "
5. Whether seagrass beds will be impacted by the proposed dock facility. (If seagrass beds
are present, compliance with subsection 5.03.06.J of the LDC must be demonstrated.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. There are no seagrass beds present on the propertJ� nor the neighboring
properties within 200 feet of the existing dock structure.
Page 4 of 6
6. Whether the proposed dock facility is subject to the manatee protection requirements of
subsection 5.03.06(E)(11) of this Code. (If applicable, compliance with section
5.03.06(E)(11) must be demonstrated.)
The r°ecord evidence and testimony om the public hear°ing rejlects that the criterion is not
applicable. The proposed project is for• a single family residential boat dock facility.
Section 5. 03. 06 K I], Manatee Protection Plan, is not applicable foil this boat dock
proposal.
ENVIRONMENTAL EVALUATION.
Environmental Plamiing Staff has reviewed this petition and has no objection to the granting of
this request. The property is located on a manmade canal adjacent to Little Hickory Bay. The
proposed docking facilities will be constructed waterward of the existing seawall. The shoreline
does not contain native vegetation. A submerged resources survey provided by the applicant found
no submerged resources in the area 200 feet beyond the proposed docking facility. Exhibit sheet 6
A 9 of the Site Plan provides an aerial with a note stating that no seagrasses were observed within
200 feet. This project does not require an Environmental Advisory Council Board (EAC) review
because this project did not meet the EAC scope of land development project reviews as identified
in Chapter 2, Article VIII, Division 23, Section 2-1193 of the Collier County Code of Laws and
Ordinances.
ANALYSIS.
Based on a review of the record including the Petition, application, exhibits, the County's staff
report, and hearing comments and testimony from the Petitioner and/or the Petitioner's
representative(s), County staff and any given by the public, the Hearing Examiner finds that there
is enough competent, substantial evidence as applied to the criteria set forth in Section 5.03.06.11
of the Land Development Code to approve/deny Petition. The Petition meets 4 out of 5 of the
primary criteria and 5 out of 6 secondary criteria, with one criterion being not applicable.
DECISION.
The Hearing Examiner hereby APPROVES Petition Number BD-PL20230008785, filed by Nick
Pearson of Bayshore Marine Consulting, LLC, representing Steve Birnbaum, with respect to the
property described as 295 West Avenue, further described as Lot 12, Block C, Little Hickory
Shores Unit 1, in Section 5, Township 48 South, Range 25 East. Collier County, for the following.
• The petitioner requests a 946ot boat dock extension fi•om the maximum permitted
protrusion of 20 feet or 25 percent of the width of the waterway, whichever is less, for
waterways less than 100 feet in width, to allow construction of a boat docking facility
protruding a total of 29 feet into a waterway that is 801 feet wide, pursuant to Section
5.03.06.E.2 of the Collier County Land Development Code (LDC).
Page 5 of 6
Said changes are fully described in the Zoning Map attached as Exhibit "A", the Boundary Survey
attached as Exhibit `B", and the Dock Plans attached as Exhibit "C" and are subject to the
condition(s) set forth below.
ATTACHMENTS.
Exhibit A —Zoning Map
Exhibit B — Boundary Survey
Exhibit C —Dock Plans
LEGAL DESCRIPTION.
295 West Avenue, further described as Lot 12, Block C, Little Hickory Shores Unit 1, in Section
5, Township 48 South, Range 25 East. Collier County, Florida. The subject property comprises
0.23 acres, is described as a canal side -end lot, and is located within a Residential Single-Family-
4 (RSF4) Zoning District,
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
DISCLAIMER.
Pursuant to Section 125.022(5) F.S., issuance of a development permit by a county does not in any
way create any rights on the part of the applicant to obtain a permit from a state or federal agency
and does not create any liability on the part of the county for issuance of the permit if the applicant
fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or
undertakes actions that result in a violation of state or federal law.
APPEALS.
This decision becomes effective on the date it is rendered. An appeal of this decision shall be done
in accordance with applicable ordinances, codes and law.
RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES
AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR
VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE
NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES.
A�ri19, 2024
Date
Andrew Dickman, Esq., AICP
Hearing Examiner
Page 6 of 6
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BD-PL20230008785 — 295 West Ave Page 2 of 10
February 20, 2024
BENCHMARK
I AND SERVICE'S, INC.
1807J. 6 C. BoukwM Tel. 239591-0778
Naples,Fkdd334109 Fax 239-591-1195
L.B. A'7502 w .benMmerklandsenkvEwm
SKETCH OF BOUNDARY SURVEY
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295 WestAvenue Fusion FL LLC Community Number. 120067
Banme Springs, FL 34134 Panel.' 0179 Suffc, H
EBaclive Dale: 0511612012
FkodZone:AE BFE' 10'NA.V.D, 1986
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12, Block C, LITTLE HICKORYSHORES, UNIT NO. 1, according to the plat thereof as recorded in Plat 11 3 I
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