HEX Final Decision 2024-36HEX NO. 2024-36
HEARING EXAMINER DECISION
DATE OF HEARING.
June 27, 2024
PETITION.
Petition No. VA-PL20230000021 —Request for a variance from Land Development Code
(LDC) Section 5.03.06.E.6 to reduce the required side yard riparian setback from 15 feet to
zero feet on both riparian side yards of a private multi -family boat docking facility with eight
slips on a lot with 103t feet of water frontage. The subject property is located at 9724 Gulf
Shore Drive, across from 9715 Gulf Shore Drive, in Section 29, Township 48 South, Range
25 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner is requesting a variance to reduce the minimum required side yard riparian setback
from 15 feet to zero feet on both riparian side yards of a private multi -family dock facility with
eight slips on a lot with 103± feet of water frontage. This is a companion application with Petition
No. BD-PL20220005688,
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(2) of the
Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of
the County Administrative Code.
2. The public hearing for this Petition was properly noticed and conducted in accordance with all
County and state requirements.
3. The public hearing was conducted electronically and in -person in accordance with
Emergency/Executive Order 2020-04.
4. The 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 was one speaker from the public, Ken Keltner, as well as letters of
objection from residents on Gulf Shore Drive.
Page 1 of 5
5. 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 public hearing rejects that yes, and the
applicant's expert explains in his submittal that the "special condition for the subject
property driving this request is the existing dock layout, slip count, and natural rip -rap
with mangroves shoreline. All these factors play a role in the overall proposed dock design
options, and it was determined that being consistent ~-With what is there today is the best
option, which does not change the current utilization nor interfere with the Nti o adjacent
docking facilities. Additionally, the dock is considered a grandfathered structure with
Collier° County as it has been determined to have been constructed prior to or in 1985. "
County staff concurred with this explanation.
2. Are there special conditions and circumstances, which do not result from the action of the
applicant such as pre-existing conditions relative to the property, which are the subject of
the Variance request?
The record evidence and testimony from the public hearing reflects that yes, and the
applicant's expert explains in his submittal that "the dock is an existing grandfathered
structure that was built dating back to the early 1980's. The applicant is trying to maintain
the existing slip count, ivhich is eight slips, as they are authorized within their DEP
Submerged Land Lease, as well as indicated in the HOA documents. Based on current code
requirements there is no wayl-vithoutpr•otritdingfirrther out that the facility can be re -built
within the required side yard setbacks and maintain the existing slip count. Setback ivaivers
have been received by both adjacent property entities as the proposed dock design is
consistent with what exists today, which results in requiring a variance from the riparian
setbacks to comply with Collier County's LDC. " County staff concurred.
3. Will a literal interpretation of the provisions of this zoning code work unnecessary and
undue hardship on the applicant or create practical difficulties for the applicant?
The record evidence and testimony from the public hearing rejects that yes, and the
applicant's expert explains in his submittal that "the denial of this petition. request would
prevent the applicant from maintaining what they currently have and having authorization
from both DEP and USACE. There are eight slips and if the side yard setbacks of 0 feet
are not approved the applicant and upland unit owners ivho utilize these slips 1vould have
to remove ttino slips and go back to modify their existing submerged land lease accordingly.
The existing dock and associated slips are grandfathered structures, which we must update
due to sustained damages during Hurricane Ian. " County staff agreed that denial of this
petition would create practical difficultiesfor the applicant.
1 The Hearing Examiner's findings are italicized.
Page 2 of 5
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 r ecor°d evidence and testimony fi°om the pzrblic hearing reflects yes, and the applicant's
expert explains in his submittal that "the proposed docking facility has been reduced to the
minimum size and still provides safe access and mooring area for the existing eight vessels
moored at the facility. Also, the proposed docking facility is consistent with the other
docking facilities along this shoreline. " County staff concurred
5. Will granting the Variance confer on the applicant any special privilege that is denied by
these zoning regulations to other lands, buildings, or structures in the same zoning district?
The record evidence and testimony from the public hearing reflects that, a variance
bestows some dimensional relieffr°om the zoning regulations specific to a site. LDC Section
9.04.02 allows relief through the variance process for any dimensional development
standard. As such, other properties facing a similar hardship would be entitled to make a
similar request and Tvould be conferred equal consideration on a case -by -case basis.
6. Will granting the Variance be in harmony with the general intent and purpose of this Land
Development Code, and not be injurious to the neighborhood, or otherwise detrimental to
the public welfare?
The record evidence and testimony fi°om the public hearing reflects that yes, and the
applicant's expert stated in his submittal that the "variance is for a docking facility and
associated vessels to continue to be moored on the dock at the subject proper o). This is a
lvaterfi°ont boating community that offers access to the subject ivateri-vay through riparian
rights; therefore, the proposed dock will not affect the firnetionalio) of any surrounding lots
but allow this property to be consistent with the others along the same subject shoreline.
Additionally, the subject properly olvner has received setback ivaivers f •om both adjacent
property owners to maintain what they currently utilize today lvith the existing dock and
slip layout. " County Staff noted that the referenced setback Tvaiver•s are identified as
"Letter of Concurrence for Setback Waiver, " ivhich were required by either DEP or
USACE for their permitting processes; said letters serve as letters of no objection and are
contained lvithin the Applicant's Backup Package. Consequently Coumy staff concurred
with the Applicant's expert.
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 f°om the public hearing reflects that the applicant's
expert stated in his submittal that "the subject tivaterway is a natural bay that has been
man -altered, but this section is made up of sovereign submerged lands (state lands).
Additionally, the ivaterivay is heavily developed with other docking facilities, marinas, and
Page 3 of 5
single family docks which have historically altered the surrounding natural
characteristics. " Couno) staff concurred
8. Will granting the Variance be consistent with the GMP?
The record evidence and testimony fi°orrt the public hearing reflects that,}>es, approval of
this Variance will not affect or change the requirements of the GMP with respect to density,
intensity, compatibility, access/connectivity, or any other applicable provisions.
CONCURRENT LAND USE APPLICATIONS.
• Companion Petition No. BD-PL20220005688, to allow the proposed boat dock facility
to protrude a total of 59 feet into a waterway that is 447± feet wide.
• SDPI-PL20230011829
ANALYSIS.
Based on a review of the record including the Petition, application, exhibits, the County's staff
report, and hearing comments and testimony from the Petitioner and/or the Petitioner's
representative(s), County staff and any given by the public, the Hearing Examiner finds that there
is enough competent, substantial evidence as applied to the criteria set forth in Section 9.04.03 of
the Land Development Code to approve the Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-PL20230000021, filed by Jeff
Rogers of Turrell, Hall & Associates, Inc., representing Villas of Vanderbilt Beach Condominium
Association, Inc., with respect to the property located at 182 Cocohatchee Blvd and legally
described as 11.5-acre property is located at 9724 Gulf Shore Drive, across from 9715 Gulf Shore
Drive, in Section 29, Township 48 South, Range 25 East, Collier County, Florida, for the
following:
• A variance from Section 5.03.06.E.6 of the Collier County Land Development Code (LDC)
to reduce the minimum required side yard riparian setback from 15 feet to zero feet on both
riparian side yards of a private multi -family dock facility with eight slips on a lot with 103::L
feet of water frontage.
Said changes are fully described in the Zoning Map attached as Exhibit "A" and the Site Plan
attached as Exhibit "B" and are subject to the conditions) set forth below.
ATTACHMENTS.
Exhibit A —Zoning Map
Exhibit B —Site Plan
Page 4 of 5
LEGAL DESCRIPTION.
The subject properly is located at 9 / Gulf Shore Drive, across from 9715 Gulf Shore Drive, in
Section 29, Township 48 South, Range 25 East, Collier County, Florida.
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
2. This dock is private in nature and shall not be used for rental or commercial purposes.
3. Vessells moored at the north and south slips shall only moor to the dock and not have
independent tie pilings detached from the dock facility. Said vessels shall remain within
the applicant's riparian lines.
DISCLAIMER.
Pursuant to Section 125.022(5) F.S., issuance of a development permit by a county does not in any
may 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,
July 26, 2024
Date
Andrew Dickman, Esq., AICP
Hearing Examiner
Page 5 of 5
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