HEX Final Decision 2024-30HEX NO. 2024-30
HEARING EXAMINER DECISI
DATE OF HEARING.
May 30, 2024
PETITION.
Petition No. VA - PL20230015505 —1478 Rail Head Boulevard -Request for a variance from
Land Development Code Section 4.02.01 A, Table 2.1, footnote e., for an Industrial zoned lot
to reduce the required minimum side yard setback on the south property line from 10 feet
to 0 feet to be located at Lot 14, Rail Head Industrial Park, also known as 1478 Rail Head
Boulevard, Naples, FL 34110 in Section 10, Township 48 South, Range 25 East, Collier
County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner requests a variance from Land Development Code for an Industrial zoned lot to
reduce the required minimum side yard setback on the south property line from 10 feet to 0 feet.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(2) of the
Collier County of Ordinances, Sec. 8.10.00 of the all 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 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 four speakers from the public at the public hearing: Robert Samouce
the attorney for Rail Head Industrial Park Owner's Association, Inc., Marcel Vezina the
president of Rail Head Industrial Park Owner's Association, Inc., Michael Chaussec the
property owner at 1475 Railhead Blvd., and Artem Perchenok (via Zoom) the property owner
at 1474 Railhead Blvd.
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5. The Petitioner and the public speakers stated that the subject property is part of an association
with some private rules and regulations. While it is better when the Petition has the
association's approval and follows any private rules and regulations of the association,
generally the County does not have authority to enforce those private rules and regulations.
Enforcement of valid private rules and regulations related to real property is a civil matter.
Currently the County codes do not need approval from a private association before filing an
application for a variance.
6. Each petition or application for a zoning variance must be judged on its own merits and is not
controlled by prior variances nor sets a precedent for future variances. City of Jacksonville v.
Tylor, 721 So. 2d 1212 (Fla 1 st DCA, 1998).
7. The County's Land Development Section 9.04.03 lists the criteria for variances. The Hearing
Examiner having the same authority as the Board of Zoning Appeals may grant, deny, or
modify any request for a variance from the regulations or restrictions of the Collier County
Land Development Code.I
1. Are there special conditions and circumstances existing, which are peculiar to the location,
size and characteristics of the land, structure or building involved?
The record evidence and testimony from the pzrblic hearing reflects that the site was
permitted and developed under the danuar y 1982 LDC standards. The development
standards for this zoning district were less restrictive in that version of the LDC compared
to the current LDC Ord. 0441. The existing south side setback of 0 feet needs to be
maintained due to the location of the existing building, Which will remain. The 47.5 foot
separation distance between the existing building and the building located to the south
meets the separation requirements in effect at the time they here constructed. The increase
in height i-vill not affect the operation of the building to the south, nor ivill it provide any
negative shadowing of the site since it is located to the north. The 1982 LDC required a
minimum 10' separation behveen structures with no correlation to the height of the
building.
2. Are there special conditions and circumstances, which do not result from the action of the
applicant such as pre-existing conditions relative to the property, which are the subject of
the Variance request?
The record evidence and testimony front the public hearing reflects that the existing
building was constructed at one story in height and at the 0 foot setback, ��4�ich lwas the
minimum side setback lvhen it was permitted on December 10, 1997. The building could
have been constructed at 35 feet high at the 0-foot setback, subject to the LDC at that time.
The changes to the code caused this once -conforming structure to become a non-
conforming structure by no fault of the past or present owner. This code change created a
hardship for an existing permitted building to be expanded in height to support market
1 The Hearing Examiner's findings are italicized.
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changes to make the business profitable in current markets. There is limited space to
expand the footprint of the building yielding an increase in height as the only option for
the owner to expand the business. Meeting the required 10 foot minimum side setback for
the upper stories of this building expansion is a hardship because it breaks up the frrst-
floor cir•ea with support columns for the upper stories and limits the use that this owner has
proposed The car storage area on a 3-story lift will need a continuous vertical space for
the lift to operate, similar to a boat lift. If the upper stories are not continuous with the first
floor, then the stacking of the cars will not be in the same structural plane and won't be
feasible. The proposed renovation to building height extends the existing footprint of the
building vertically only, with no increase to the building footprint on the sui face.
3. Will a literal interpretation of the provisions of this zoning code work unnecessary and
undue hardship on the applicant or create practical difficulties for the applicant?
The record evidence and testimony fi°orn t1�e public hearing reflects t1�at a litercil
interpretation will create a financial hardship on the applicant if the building cannot be
constructed cis proposed. The number of cars the applicant could store in the building will
be greatly limited, restricting the subject property from expanding its business.
Constructing the additional h-vo stories ivith a setback of 10 feet on the south side would
interfere with the maneuverability inside the building and reduce the number of'cars that
can be stored lvithin the building.
4. Will the Variance, if granted, be the minimum Variance that will make possible the
reasonable use of the land, building or structure and which promote standards of health,
safety, and welfare?
The record evidence crud testimony fi°om the public hearing reflects that if this variance is
granted, it is the minimum variance needed to maintain the functional use of the land Any
side setback greater than 0 feet ivill diminish the storage capacity of the building and
r°ender• the business infeasible to sustain itselffinancially. The structure will not expand its
building footprint; it hill only increase the height of the existing structure within the
current building height in the Industrial zoning district.
5. Will granting the Variance confer on the applicant any special privilege that is denied by
these zoning regulations to other lands, buildings, or structures in the same zoning district?
The record evidence crud testimony from the public hearing reflects that the additional two
stories to this building do not violate any heigl�t r•equir•ernents of the present code lvhich is
a maximum of 50 feet. The existing structure could have been constructed to a height of 35
feet, ivhich was the maximum height in the 1982 ordinance. Therefore, the granting of this
variance will not confer any special privileges.
6. Will granting the Variance be in harmony with the general intent and purpose of this Land
Development Code, and not be injurious to the neighborhood, or otherwise detrimental to
the public welfare?
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The record evidence and testimony from the public hearing reflects that the surrounding
properties are also zoned industrial. The building to the east of the subject property is a
two-story structure. The other adjacent structures are oversized single -story structures
lvith increased eave heights. The increased height will not shadow any neighboring
properties for most of the day. The buildings to the north and 1-vest are more than 130 feet
from this structure and are separated from this site by the Rail Head Blvd right-of-way.
Granting this variance would not be injurious to the neighborhood or the public 1ve fare.
7. Are there natural conditions or physically induced conditions that ameliorate the goals and
objectives of the regulation such as natural preserves, lakes, golf courses, etc.?
The record evidence and testimony from t1�e public hearing reflects that other than the
easterly and southerly property line, this facility is separated from other developments by
rights-of-lvay that allowfor access to this and other properties in the Rail Head Industrial
Park. This separation from the northerly and 1-vesterly properties by the rights -of --way
minimizes the increase in height of this building. This proposed height increase hill still
be 1 S feet less than the maximum height of 50 feet in the Industrial zoning district. As for
the easterly property lines and structures, the easterly building has a separation of 43.7
feet from this building; it is a t►vo-story building with a flat roof and is separated from our
building with a drainage easement and landscaping, which includes canopy trees. The
southerly building is separated by 47.5 feet from this building lvith a parking and
landscaping area including palm and canopy trees. It is a one-story building but appears
to be approximately 16 feet high to the top of its flat roof. There is no proposed expansion
to the existing structure's footprint on the subject property), and the existing separation
bet►veen adjacent structures will be maintained. Because the subject property is a corner
lot, the existing building cannot be expanded to the north or west due to the parking area
and access through the property. The footprint lvas maximized in its original construction
in 1997.
8. Will granting the Variance be consistent with the GMP?
The record evidence and testimony fi4on2 the public hearing reflects that since the proposed
use of an indoor• car storage facilit�� is crn allolvable use in the industrial zoning district,
and the building is an existing structure, the granting of the variance is consistent with the
Growth Management Plan.
ENVIRONMENTAL ADVISORY COUNCIL (EAC) RECOMMENDATION.
The EAC does not normally hear variance petitions. Since the subject Variance does not impact
any preserve area, the EAC did not hear this petition.
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
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is enough competent, substantial evidence as applied to the criteria set forth in Section 9.04.03 of
the Land Development Code to approve the Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-PL20230015505, filed by Gina R.
Green, P.E., representing Cabrera Realty LLC, with respect to the property legally described as
0.51-acre parcel, Parcel ID # 69030000668, at 1478 Rail Head Boulevard, Naples, FL 34110, also
known as Lot 14, Rail Head Industrial Park, in Section 10, Township 48 South, Range 25 East,
Collier County, Florida, for the following:
• A Variance from Land Development Code Section 4.02.01 A, Table 2.1, footnote e., for
an Industrial zoned lot to reduce the required minimum side yard setback on the south
property line from 10 feet to 0 feet.
Said changes are fully described in the Zoning Map attached as Exhibit "A" and the Conceptual
Site Plan attached as Exhibit "B" and are subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A —Zoning Map
Exhibit B — Conceptual Site Plan
LEGAL DESCRIPTION.
The subject property is a � 0.51-acre parcel, Parcel ID # 69030000668, at 1478 Rail Head
Boulevard, Naples, FL 34110, also known as Lot 14, all Head Industrial Park, in Section 10,
Township 48 South, Range 25 East, Collier County, Florida.
CONDITIONS.
• All other applicable state or federal permits must be obtained before commencement of the
development.
DISCLAIMER.
Pursuant to Section 125.022(5) F.S., issuance of a development permit by a county does not in any
way create any rights on the part of the applicant to obtain a permit from a state or federal agency
and does not create any liability on the part of the county for issuance of the permit if the applicant
fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or
undertakes actions that result in a violation of state or federal law.
APPEALS.
This decision becomes effective on the date it is rendered. An appeal of this decision shall be done
in accordance with applicable ordinances, codes and law.
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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,
June 25, 2024
Date
Andrew Dickman, Esq., AICP
Hearing Examiner
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