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HEX Final Decision 2024-37HEX NO. 2024-37 HEARING EXAMINER DECISION DATE OF HEARING. June 27, 2024 PETITION. Petition No. BD-PL20220005688 —Request fora 39-foot boat dock extension from the maximum permitted protrusion of 20 feet for waterways greater than 100 feet in width, to allow construction of a private multi -family boat docking facility with eight slips protruding up to 59 feet into a waterway that is 447 feet wide. The subject property is located at 9724 Gulf Shore Drive in Section 29, Township 48 South, Range 25 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The petitioner requests a 39-foot boat dock extension from the maximum permitted protrusion of 20 feet, to allow the construction of a private multi -family boat docking facility with eight slips protruding up to 59 feet into a waterway that is 447± feet wide. This is a companion application with Petition No. VA-PL20230000021. 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 ail 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 was one speaker from the public, Ken Keltner, as well as letters of objection from residents on Gulf Shore Drive. 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 7 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.1 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 record evidence and testimony fi•omthe public hearing reflects that the criterion HAS BEEN MET. The applicant's expert stated in his submittal that "The subject properiy is zoned and currently being utilized as a multi family residential building, which warrants no more than one slipper dwelling unit per the CGLDC and the Manatee Protection Plan. The proposed docking facility Tidll consist of replacing the existing dock and then constructing a neiv docking facilio) consistent with the existing one. The new dock ivill maintain the eight existing slips to accommodate 29 foot and 35 foot LOA vessels. The proposed dock will extend out 59 feet from the MHWL, which is 39 feet of protrusion past the alloived 20 feet. " County staff concurred that the subject dock facility serves and is part of a multiple family condominium project. The project is divided by Gulf Shore Drive; the dwelling units are on the west side of the road, and the docking facility is on the east side. 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 from the public hearing reflects that t1�e criterion HAS BEENMET. The applicant's expert stated in his submittal that: "The proposed boat dock project is to extend out far enough past the newly proposed seaivall shoreline and associated riprap to accommodate the vessels. Additionally, the depths are not sufficient within the allowed 20 feet; therefore, the BDE is needed to reach out past the proposed seaivall and rip -rap shoreline as i-vell as to deeper water depths, as shown on sheet 7 of 10 within the attached BDE exhibits. " County staff concurred 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 inhlide into any marked or charted navigable channel thus impeding vessel traffic in the chamlel.) 1 The Hearing Examiner's findings are italicized. Page 2 of 7 The record evidence and testimony Jrom the public hearing reflects that the criterion HAS BEEN MET. The applicant's expert stated in his submittal that: "The proposed docking facility design is consistent with what is there today as well as the other existing docking facilities on the subject waterway and their overall protrusion. As proposed, the dock will not impact navigation as well as maintain the ingress/egress to both adjacent neighboring docks. There is no marked channel within this section of Vanderbilt Lagoon; cis a result, there will not be any impact to the existing navigation as a result of the proposed project. The dock Will also be within the allowed 25% width of the waterway. " County staff concurred. 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 testimony from the public Bearing reflects that the criterion HAS NOT BEEN MET. The applicant's expert stated in his submittal that: "The subject property) shoreline and shoreline directly across the waterway are neither exactly square nor consistent for measurement purposes. Based on these existing conditions, two protrusion measurements are being provided, one on the north and one on the south end of the proposed dockingfacility. To the north, the waterway is approximately 447feet wide, and the dock protrudes 37 feet into the subject waterway. Therefore, the docking facility will occupy 8.3% of the waterway. Additionally, there is no dock immediately opposite the proposed facility. As such, over 91 % of the waterway will be maintained for navigation. To the south end of the proposed docking facility, the subject waterway is approximately 1,101 feet wide, and cis proposed, the dock will protrude approximately 59 feet. Based on this, the proposed dock facility will occupy 5. 4% of the waterway, therefore maintaining 94% open for navigation. County staff concurred. 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 ji•om the public hearing i°eflects that the criterion HAS BEEN MET. The applicant's expert stated in his submittal that: "The proposed docking (acilio) is consistent with the existing dock on -site and the other neighboring docks which accommodate larger vessels. As proposed, the dock ivill maintain the existing conditions and associated access. County staff concurred as the existing and proposed facilities are substantially similar. 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 Page 3 of 7 may include type of shoreline reinforcement, shoreline configuration, mangrove growth, or seagrass beds.) The record evidence and testimony fr°om the public hCut °ing reflects that the criterion HAS BEEN MET. The applicant's expert stated in his submittal that: "The subject property shoreline consists of a natural mangrove rip -rap shoreline along the entire 103 linear feet. The proposed dock project is to rebuild/reconstruct a neiv docking facility that will mostly be rebuilt within the existing footprint and extend past the newly proposed seawall and rip - rap shoreline to accommodate the vessels. Additionally, the width of the waterway and the fact the entire waterway is open for navigation allows for a dock to protrude out, which is consistent with ours lvithin the subject waterway. " County staff concurred that the requested protrusion is not excessive, given the location. 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 criterion HAS BEEN MET. The applicant's expert stated in his submittal that: "The proposed docking facility has been fully minimized and still provides sufficient deck area for routine maintenance, safe access, and recreational activities like fishing and kayaking. The total over -water square footage is 833 square feet. County staff concurred that there is no excessive decking. 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 is not applicable. This petition is for up, vate multi family out docking faciliIYO 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 from the public hearing reflects that the criterion HAS BEEN MET. The applicant's expert stated in his submittal that: "As proposed the dock has been designed to be consistent lvith the existing docking facility that is there currently and has been there prior to 1985. There are no neiv impacts to either adjacent property owner as their• view hill not change, and both have signed off on the proposed design. " Couny) staff concurred. 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.) Page 4 of 7 The record evidence and testimony from the public hearing reflects that the criterion HAS BEENMET. The applicant's expert stated in his submittal that: "There are no seagrass beds present on the property nor the neighboring properties within 200 feet of the existing dock structure. " Given the information provided within the provided Submerged Resources Survey, County staff concurred. 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 record evidence crud testimony fi°onz the purblic hearing reflects that the criterion is not applicable. The applicant's expert stated in his submittal that: "The proposed work is a multifamily dock facility and subject to Manatee Protection Plan. Requirements. As designed, the docking facility is consistent iidth the MPP. " Staff disagrees, as LDC Section 5.03.06.E.1 states that it applies to multi -slip dock facilities with ten or more slips. The proposed facilio) has eight slips and so is not subject to review for consistency ioidth Collier County's MPP. County staff, therefore, found this criterion to be not applicable. ENVIRONMENTAL EVALUATION. Environmental Planning Staff has reviewed this petition and has no objection to granting this request. The property is located adjacent to (Vanderbilt Lagoon). The proposed docking facilities will be constructed waterward of the existing seawall with riprap. The shoreline does contain native vegetation (Mangroves), and the proposed docking facility will have a minor impact to existing mangroves. A submerged resources survey provided by the applicant found no submerged resources in the area 200 feet beyond the proposed docking facility. This project does not require an Environmental Advisory Council Board (EAC) review because it did not meet the E.M. scope of land development prof eat 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 5.03.06.1-1 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-PL20220005688, filed by Jeff Rogers of Turrell, Hall &Associates, Inc., representing Villas of Vanderbilt Beach Condominium Association, Inc, with respect to the subject property described as located at 9724 Gulf Shore Page 5 of 7 Drive, across from 9715 Gulf Shore Drive, in Section 29, Township 48 South, Range 25 East, Collier County, Florida., for the following: • The petitioner requests a 39-foot boat dock extension from the maximum permitted protrusion of 20 feet, allowed by Section 5.03.06.E.1 of the Collier County Land Development Code (LDC) for waterways greater than 100 feet in width, to allow the construction of a private multi -family boat docking facility with eight slips protruding up to 59 feet into a waterway that is 447± feet wide. Said changes are fully described in the Zoning Map attached as Exhibit "A" and the Dock Facility Plans attached as Exhibit "B" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A —Zoning Map Exhibit B — Dock Facility Plans LEGAL DESCRIPTION. 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. CONDITIONS. 1. All other applicable state or federal permits must be obtained before commencement of the development. 2. Approval is predicated upon the approval of the companion Variance, VAPL20230000021, by the Hearing Examiner; absent such approval, this BD is void. 3. This dock facility is private in nature and shall not be used for rental or commercial purposes. 4. 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 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. Page 6 of 7 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. 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