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HEX Minutes 06/27/2024June 27, 2024 Page 1 of 28 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY HEARING EXAMINER Naples, Florida June 27, 2024 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 Sean Sammon, Planner III Ailyn Padron, Management Analyst I June 27, 2024 Page 2 of 28 PROCEEDINGS HEARING EXAMINER DICKMAN: Good morning, everyone. Welcome to the Bob Mulhare meeting, the esteemed planner. Okay. Thank you, everyone, for being here. Today is the June 27th hearing examiner meeting for Collier County. Let's all start with the Pledge of Allegiance. (Pledge of Allegiance). HEARING EXAMINER DICKMAN: Okay. Thank you, everyone. Just a few preliminaries. My name is Andrew Dickman. I am the hearing examiner. I am on contract by the Board of County Commissioners to fulfill the duties of the hearing Examiner as they're expressed in the code of ordinances. I am a Florida Bar attorney. I have been a member of the Florida Bar for over 20 years. I have worked in land use, zoning, environmental law, all of the topics that are germane to the scope of the hearing examiner. As I said, I'm not a county employee. I'm here to be an impartial decision-maker. I have not spoken with any of the applicants about their applications. I have not spoken with the County about any of the applications. I haven't spoken to anybody about the applications. As I said, I get the material that has been put in the record, I read it, I prepare for this meeting, and I come here, and I ask for the testimony that we're about to hear. And then -- I do not make decisions here today. I make -- under the code, I render a written decision within 30 days. Usually I can get them out earlier than that, depending on how complicated they are. But the point of this meeting is really just to have the petitioner present their application, allow for any public comment, whether it be in-person or virtually. And then we'll also hear from the County and any recommendations or conditions they have for the application. Anyone who is going to speak here today, testify before me, needs to do so under oath. And we'll just take care of all three items at the same time. And I'm going to ask anyone who is going to speak here today to stand. And I'm going to ask that the court reporter administer the oath. (Oath administered.) HEARING EXAMINER DICKMAN: All right. Thank you very much. Speaking of our court reporter, it's very important that we speak carefully. Don't speak over each other. Try to speak up. Speak into the microphone. If there's a time where she's feeling like we're talking too fast or talking over each other, she has full authority to stop the meeting, and -- and then we'll get back on track, because I want to make sure that we have an accurate record of this meeting. So, with that, we have three items on the agenda. And I think, if I -- if I'm correct, 3-B and 3-C are companion items. Is that right? MR. SAMMON: That's correct. HEARING EXAMINER DICKMAN: So we'll be doing that as one presentation and two different decisions. Okay. So we'll put those off of -- 3-A is the first one that we have. So why don't we get started with that one? MR. SAMMON: Good morning, Mr. Dickman. For the record, Sean Sammon, Planner III in the zoning division. Before you is an agenda item 3-A. This is a request for an insubstantial change to Ordinance Number 12-09, as amended, the Orange Tree planned unit development, by amending the community use development standards, Section 7.03.D, and amending the public facilities development standards, Section 9.03.4, to except ground-mounted communication towers from the maximum height of structures, allowing such towers up to a maximum height of 185 feet and subject to Land Development Code Section 5.05.09. The subject PUD consists of approximately 2138.76 acres and is located at the northeast corner of the intersection of Immokalee Road and Randall Boulevard in parts of sections 11, 12, 13, 14, 22 through 27, Township 48 South, Range 27 East, Collier County, Florida. June 27, 2024 Page 3 of 28 The petition was reviewed by staff based upon the review criteria contained within the LDC Section 10.02.13 E.1.a through k and 10.02.13 E.2.a, and staff believes this petition is consistent with the review criteria in the LDC as well as with the GMP. The applicant conducted one neighborhood information meeting on Wednesday, April 24th, 2024. Twenty-one members of the public attended in person. Two other people were online. and details from this meeting are included in the back of the package, Attachment A to the staff report. With respect to the public notice requirements, they were complied with as per LDC Section 10.03.06.h. The property owner notification letter and newspaper ad were taken care of by the county on Friday, June 7th, 2024. and the public hearing signs were placed by the applicant on Wednesday, June 12, 2024. I've received six calls and one in-person visit from the public, all for more information regarding the petition request and there has been no public opposition pertaining to this petition. Therefore, staff recommends that you approve this petition, subject to including Attachment B, PUD revised text, in the HEX decision, including two conditions of approval as written into the staff report. That concludes staff's summary. HEARING EXAMINER DICKMAN: Thanks. Nice job. Very good. Is the applicant's representatives here? How are you? MS. SUMMERS: Good. Good morning. For the record, my name is Ellen Summers. I'm a certified land use planner and a lead planner with Bowman Consulting Group. HEARING EXAMINER DICKMAN: Okay. MS. SUMMERS: No longer Hole Montes. HEARING EXAMINER DICKMAN: Oh, well. MS. SUMMERS: I do have a brief presentation. I'm happy to go through it just to give a little bit more detail about the request. HEARING EXAMINER DICKMAN: Great. MS. SUMMERS: We are here on behalf of Collier County Board of County Commissioners. They are the property owners for these two tracts of land. With me here, I also have Robert Mulhare, who is with Bowman Consulting, and the staff representative, Jennifer Belpedio. She's the manager of real property acquisition. Next slide. This is the Orange Tree PUD location. On the northern portion of the map, you can see the community use tract and the public facilities tract. Those two tracts equate to about 233 acres. Next slide, please. And here's just a rendering from the Orange Tree master plan. You can see where the community use tract is on the western portion of the site and the public facilities tract on the eastern, with residential to the south and a little bit of ag mixed in. Next slide. So our -- as Sean stated, our PDF -- PUD request is to amend the community use and public facilities development standards. These tracts currently permit communication towers. However, the community use tract had a maximum structure height of 25 feet. We have revised this to a maximum height of 185 feet for communications towers. And this is consistent with the current LDC standards in 5.05.09. And, again, we are also cross-referencing within these two tracts that the communications towers must meet the requirements of LDC Section 5.05.09. Next slide, please. Well, if you could see that PUD language, you would see that essential services is listed as a permitted use under the community use tract, but within the most recent LDC amendments, communication towers are now considered an essential service. June 27, 2024 Page 4 of 28 So since it is an allowed use, we had to modify the maximum height of structures, again, as I stated, to 185 for communication towers. And in the next slide, we have the public facilities tract, where it is -- communications towers are listed as an accessory use. And, again, we're just adding those development standards, cross-referencing to LDC Section 5.05.09 and including that maximum height of 185 feet. That's really the -- the bulk of my presentation. I'm happy to answer any questions. HEARING EXAMINER DICKMAN: Okay. MS. SUMMERS: I do want to state that this project was initially directed by the Board of County Commissioners back in -- I want to say early 2022. It was directed by the Board of County Commissioners for staff to ensure that they could put a tower somewhere within the site that they -- that Collier County owned. This is where we came into play. So I do believe that the County anticipates to go out further after -- if this is approved, to seek some requests and proposals to actually construct a tower. However, that's not still not definitive at this time. HEARING EXAMINER DICKMAN: Understood. MS. SUMMERS: Okay. HEARING EXAMINER DICKMAN: Good presentation. Any public speakers? MS. PADRON: Good morning. We have two virtual speakers. HEARING EXAMINER DICKMAN: Okay. Great. Good morning. MS. PADRON: Our first speaker is Victoria Banaszczyk. MS. BANASZCZYK: Can you hear me? MS. PADRON: Yes, we can. MS. BANASZCZYK: Okay. So my name is Victoria Banaszczyk. I work in marketing and public relations. Wood storks are a federally endangered species found at Corkscrew Swamp Sanctuary. Snail kite is a Florida endangered species at Corkscrew Regional Ecosystem Watershed, wildlife and environmental areas. Seeing as the bird sanctuary and wildlife areas are both adjacent to the site, do you plan to consult any environment scientists about the risks the communication towers poses to endangered bird species? HEARING EXAMINER DICKMAN: Please continue your -- is that -- is that the conclusion of your presentation or your comments? MS. BANASZCZYK: That's my first question. HEARING EXAMINER DICKMAN: No. No. Just go ahead and make all of your comments, and I will -- I will make sure that they'll get answered. MS. BANASZCZYK: Okay. So my first is environmental. And my second question is, with inflation and mortgage rates already putting homeowners in a very tough position, the addition of this communication tower has the potential to bring down property values by 7.6 percent, according to the National Association of Realtors, and as much as 20 percent according to national businesses. How do you plan to justify this to homeowners? HEARING EXAMINER DICKMAN: Okay. MS. BANASZCZYK: Those are my two questions. Thank you. HEARING EXAMINER DICKMAN: And you're affiliated with whom? MS. BANASZCZYK: I'm a homeowner. HEARING EXAMINER DICKMAN: You're a homeowner, okay. Thank you very much for your comments. Any other speakers? MS. PADRON: Our next speaker is Alfred Pappalardo . HEARING EXAMINER DICKMAN: Great. Good morning. MS. PADRON: Can you hear us? HEARING EXAMINER DICKMAN: Alfred? June 27, 2024 Page 5 of 28 MS. PADRON: Muted? HEARING EXAMINER DICKMAN: Can you ping him one more time? MS. PADRON: Alfred, can you hear us? HEARING EXAMINER DICKMAN: Looks like he's muted. There he goes. MS. PADRON: Okay, he's muted again. HEARING EXAMINER DICKMAN: Hi, Alfred. All right. He seems to be having trouble. He's unmuted, I can see that. MS. PADRON: Yes. HEARING EXAMINER DICKMAN: All right. He's gone. MS. PADRON: We have no additional speakers for this petition. HEARING EXAMINER DICKMAN: Okay. All right. So let's -- let's just address the -- I imagine you want to rebut the -- have some rebuttal time for those issues? MS. SUMMERS: Yes, please. HEARING EXAMINER DICKMAN: So I heard two. One had to do with the environmental evaluation or impact. Corkscrew Sanctuary is nearby. And then there was a question regarding property values that -- MS. SUMMERS: Well, I -- I can't speak to property values, but I can speak to the LDC requirements for migratory board -- birds and other wildlife considerations, and that will be part of the permitting review. There are standards within the current LDC that this communications tower would also have to adhere to, and that will be reviewed at time of SDP, building permit requirements. HEARING EXAMINER DICKMAN: Okay. So that's a subsequent evaluation. The only thing that I'm doing here is really looking at the insubstantial change portion of it. And subsequent to this, there's a whole bunch of other regulatory things that you have to meet, and that part of that will be an environmental -- some kind of environmental impact analysis. So any -- I guess he's not back. We'll just have to call it a day. MS. PADRON: If you like, we can try him again. HEARING EXAMINER DICKMAN: Yeah, let's give him one more try. MS. PADRON: Okay. HEARING EXAMINER DICKMAN: And let's see, because I don't want anybody to complain that they didn't get the chance to speak. MR. PAPPALARDO: Can you hear me? HEARING EXAMINER DICKMAN: There he is. Alfred, how are you? Go ahead and speak. MR. PAPPALARDO: Pretty good. I did send you a -- I typed something and sent it also. I just wanted -- (Comment by reporter.) HEARING EXAMINER DICKMAN: Yeah. Speak clearly so we can capture your -- your -- everything. MR. PAPPALARDO: Well, like the one lady said, I have a -- you know, I reiterate, but as far as -- it doesn't seem like this meeting is about where the tower is going. It's just getting, you know, the ordinances changed. But there's so many studies on this, about how these towers change the DNA of people. It's a -- they -- they did studies since 2008. And there's a lot of health risks to this. And to put it near any development or anything like this new ball field and all that they built, I think is a mistake. I just hope that they look through all the literature that's out there about the negative effects on people. HEARING EXAMINER DICKMAN: Okay. MR. PAPPALARDO: Now, I mean, are -- is there going to be another meeting when they do decide to -- if they do decide to do this? I mean, they can put it way out in the woods, put it down Immokalee Road, where there's a -- that electrical plant, which would be way out of the way, because, I mean, like I said, some of those studies, 546 yards it should be before -- and there's still a risk from people. June 27, 2024 Page 6 of 28 HEARING EXAMINER DICKMAN: So, as you said earlier, this is just a -- basically a request to add this use – MR. PAPPALARDO: Okay. HEARING EXAMINER DICKMAN: -- in the ordinance. So subsequent to this, it will be a permitted use. So I would assume that this is an administrative -- that would be an administrative approval after that. So it would not be a public hearing unless there's some kind of variance request or some other type of request. But you can certainly contact the county and track what they're doing and find out where they're going. So I -- right now there's not a location within that whole area selected. It's just really just adding it to the list of permitted uses and the height. MR. PAPPALARDO: Okay. HEARING EXAMINER DICKMAN: You mentioned that you sent something in in writing? Did -- I didn't know if we received that. MR. PAPPALARDO: Yeah, I did send it. It's pretty much what I just talked about. HEARING EXAMINER DICKMAN: Okay. All right. Fair -- fair enough. I don't have a copy of it, then. All right. Thank you. We'll close the public hearing, then. That one had to do with health risks. I imagine you're not the qualified person to speak to that. MS. SUMMERS: That's correct. HEARING EXAMINER DICKMAN: Right, okay. But you are. MR. BOSI: Mike Bosi, planning and zoning director. The 1996 Federal Telecommunication Act prohibits jurisdictions from denying wireless communications solely based upon the health risks or effects. So we, as a county, could not deny a petition based upon an -- alleged health effects of the telecommunications -- or telecommunication towers. And just to let you know, there is a tremendous amount of information and disinformation out there about 5G. And the federal government has not changed their stance, in terms of how a local government can treat these. So in terms of the health effects, it's something that we can't even consider. HEARING EXAMINER DICKMAN: Right, okay. Thank you very much for that. Anything else from the applicant? MS. SUMMERS: No, that's it. HEARING EXAMINER DICKMAN: Okay. Thank you for that information. Pretty straightforward. I appreciate the public comments. And I will get a decision out as quickly as possible. MR. BOSI: One other aspect for your consideration: 91 percent of the emergency phone calls that the sheriff's office receives are from wireless communication facilities. And wireless communication facilities are only effective when they're close to where people utilize them. So putting them far away, remotely from where the -- the general population is does not serve the purposes of the telecommunication tower and which is now primarily -- and as you've seen, it's an essential service, because it's directly related to the health, safety, and welfare of the general public related to the need to -- you know, for the 911 services. HEARING EXAMINER DICKMAN: Got it. Perfect. Thank you. All right. Nice job. Thank you, everyone. I appreciate your participation. We're going to go to 3-B now. Sean again. It's 3-B and C. Sorry. Yeah, it's 3-B and C. All right. MR. SAMMON: Good morning, Mr. Dickman. For the record, Sean Sammon, Planner III, zoning services, standing in for John Kelly, Planner III, zoning services, who is out on an unforeseen absence. This is a request -- the petitioner requests the hearing examiner approve both a variance from Section 5.03.06 E.6 of the Collier County Land Development Code to reduce the minimum required side June 27, 2024 Page 7 of 28 yard riparian setback from 15 feet to zero on both sides, for a lot width approximately 103 feet of water frontage, and for a 39-foot boat dock extension over the maximum permitted protrusion of 20 feet for waterways greater than 100 feet in width, to allow a private multifamily boat docking facility with eight slips protruding up to 59 feet into a waterway that is approximately 447 feet wide, pursuant to Section 5.03.06 E.1 of the LDC, for the benefit of the subject property, which comprises approximately 0.46 acres at 9724 Gulf Shore Drive in Section 29, Township 48 South, Range 25 East, Collier County, Florida. Public notice requirements. The variance petition complied with LDC Section 10.03.06 F.2, and the boat dock extension complied with LDC Section 10.03.06 H.2. The agent letter to property owners within 150 feet was sent by the applicant's agent on May 20th, 2024. The property owner notification letter and newspaper ad was taken care of by the County on June 7th, 2024. And the public hearing sign was placed by the applicant's agent on or about June 10th, 2024. The variance application was reviewed by staff based upon review criteria contained within LDC Section 9.04.03 a through h, with findings stated in the staff report. The boat dock extension was reviewed based upon review criteria contained within LDC Section 5.03.06 h. Both were found to be consistent with the GMP and LDC. Regarding public comments, seven letters of objection were received and are contained within Attachment D. Post publication and additional objection was received, and the La Scala Condo Association withdrew their letter of concurrence for setback waiver. Both are in Attachment D-1, which was handed to you and the court reporter prior to the hearing. Therefore, staff recommends the hearing examiner approve the variance in accordance with the proposed plans contained within Attachment A. And staff also recommends approval of the companion boat dock extension in accordance with the proposed plans contained within Attachment A, subject to two conditions of approval: one, the approval is predicated upon the approval of the companion variance, PL20230000021, by the hearing examiner. Absent approval, this boat dock extension is void. And, number two, the dock is private in nature and shall not be used for rental or commercial purposes. That concludes staff's summary. HEARING EXAMINER DICKMAN: Thank you, John. I mean Sean. Sorry. MR. SAMMON: That's all right. HEARING EXAMINER DICKMAN: You get the tough ones. MR. ROGERS: Yes, sir. Good morning. For the record, Jeff Rogers with Turrell, Hall & Associates, here today representing the applicant, Villas of Vanderbilt Beach, as just described. Yeah, John's not here in my support -- my corner today, but I have been working with him, as you know, over the last -- Just give you a quick little history of this. The Villas hired Turrell, Hall & Associates in -- back after Hurricane Irma, which was in 2021. So this has been a long time coming. I have been working with them for the last three years. And the docks have been in a derelict state, unusable state, basically since Irma. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: And then, obviously, Hurricane Ian hit in the middle of us permitting -- repermitting the docks with the state and federal agencies and the county at the same time and kind of further delayed us getting to you to this point. So it's been a long time and an eyesore for many years here at the facility. June 27, 2024 Page 8 of 28 So with that being said, the applicant is basically proposing to reconstruct an existing docking facility located at 9724 Gulf Shore Drive, which is in the Vanderbilt Lagoon waterway, north mid- Collier area. The applicant is working with us, is proposing to basically -- the existing -- let me restart here. The existing docking facility is a docking facility that is considered a grandfathered structure per the state and federal agencies, as well as meets the grandfathering criteria for Collier County. On this exhibit, I have numerous pictures of -- taken over the course of time, slash, even as of -- early as -- I believe last week we went out and took some updated photos to give you a better idea of its current state. On the screen you can see -- these were taken, I believe, last week, so this is the existing conditions as it sits currently. Moving forward, I think I have some more slides with photos for you to take into consideration. The bottom right photo, I do want to point out -- down here, you can see the existing docking facility just to our south partially. Unfortunately, we couldn't walk out on the docks, because the access walkway after Ian has been dismantled. The state is all over us to rebuild this currently, because they do have an existing submerged land lease with the state, and part of that criteria and obligation to maintain the lease is to have a docking facility in working, safe condition, which it is not currently. So the state's all over us to get this back in working order. And I have been telling them we're trying to go through this process. And they understand that it's a local review that's pending the final approval of the request. However, if this request were denied, the applicant has the ability to basically rebuild what was there pre-damage. It does meet the grandfathered criteria for both the county and the state, so that is one option here, to just reconstruct what was there. HEARING EXAMINER DICKMAN: These slips are part of the existing -- MR. ROGERS: The existing facility -- let me run through some history here. HEARING EXAMINER DICKMAN: Sure. MR. ROGERS: Could you move forward on the slides, please? So there's a -- that's to the north. I'll just go through these. That's the setback to the north. Here's a -- I like this one, because this is the existing -- this is the grandfathered structure of it. And so let me get into this before I proceed into any of the real criteria here. The existing facility is grandfathered with the state, meaning it was built prior to the -- it was built in the early '80s. The state's grandfathered date is '85, 1985. The county's is 1990. So the facility was built prior to the Manatee Protection Plan being adopted, as well as prior to any submerged land leases really being issued with the state of Florida. So I do have an historical aerial, moving forward, if you would. Keep going, because there's a -- I'm going to come back to some of this. So here's an '85 aerial for you to consider. And if you look north, if you look south, there's no developments. There's no condos. These docks were just brought in to show you what's there today on the historical aerial, to give you an idea. Now, why is this important? If you look very closely here, you can see this orange line that goes go around the facility. Right? HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: That is the land lease that the state issued to them back in the '90s basically that authorized them as a grandfathered structure, which is very unique, especially on the south side. It actually encroached and went over the riparian line/property line of the subject property. HEARING EXAMINER DICKMAN: How does that happen? MR. ROGERS: It was grandfathered. June 27, 2024 Page 9 of 28 And they had mooring piles established -- going back to that photo, they have mooring piles established there. And they were there prior to any of these rules being set in stone, so to speak. So the state had to grandfather it, and they did. So that's one thing that I don't think was ever really clear in the history of this facility and what the facility actually could do and has the rights to do per the land lease and the grandfatheredness of it. So that's where -- when I was brought in, I said, Guys, let's clean this up. Let's make this -- you don't use this facility that much. There's eight slips authorized. You -- you're over your property line. Let's bring this in to your rights, basically, and clean it up with the state, to bring the mooring piles in and remove them, so that we're no longer on adjacent properties. HEARING EXAMINER DICKMAN: So when you renewed the lease, you brought that in the - - MR. ROGERS: Hundred percent, absolutely, yeah. HEARING EXAMINER DICKMAN: With the riparian – MR. ROGERS: If you'll go back a couple slides to the survey, please. So -- go back to the first one. So here's the first survey. This reflects their previous land lease. And you can see the land lease boundary right here. It went over the riparian line, which is right there. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: I have the measurements here of the extension over. I don't have it on there. It's really small, so I'm verifying. Basically it's 29 feet point -- 29.3 feet from the riparian line to the edge of their dock. If you go forward on the next survey, that dimension is shown right there. Just so you know, that's what I'm looking at currently in front of me. Okay? And then there's another dimension right here that is from the lease boundary to the same line, the edge of dock. Right? And that's approximately 22 feet. So we're 29.3 feet from property line, riparian line, to edge of dock. But from the lease boundary to that edge of dock, it's 22 feet. So there's 7.3 feet in there that we are actually overhanging the property. And that is because of those mooring piles that were already in the dirt, in the mud -- HEARING EXAMINER DICKMAN: I'm sure – MR. ROGERS: -- so -- HEARING EXAMINER DICKMAN: -- I've seen this before many times -- MR. ROGERS: You've seen this -- HEARING EXAMINER DICKMAN: -- on old – MR. ROGERS: On old -- HEARING EXAMINER DICKMAN: Well, not this one, but the – MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: -- on old leases where they just wrap it around wherever the mooring piles are. MR. ROGERS: And it's because it was there. HEARING EXAMINER DICKMAN: They don't look at -- that's the problem. MR. ROGERS: Yeah, 100 percent. So that's why I wanted to clean this up when I was brought in. I said let's -- let's, you know, bring this in. You don't use these slips. The slips are smaller. Right? They're, like, 30 -- I think a 38-foot vessel was the biggest ones we could fit in there. And those boats tend to have a 10-foot, 11-foot beam. And we have the space to modernize this facility but still accommodate eight vessels of the existing slip sizes that we have. June 27, 2024 Page 10 of 28 So let's not -- let's -- and they agreed. You know, the applicant agreed and said, Let's bring it into our property. So moving forward one slide, if you would. This is the current submerged land lease boundary. It goes from basically riparian line to riparian line. And that -- and that authorizes and maintains the eight slips, which this has been granted. This has been issued. So state and federal permits have been issued, and the lease has also been issued. So that takes a long time to get, and this -- like I said, I've been working on this for three, four years now. So everything's in place with the state now. And why is that important? Because the setback waivers, the letters of no objection that were submitted to the county, were something that the country processor John Kelly and I just said, Hey, let's submit it, because they're not required on your behalf. They're required for the state permitting process. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: And they signed off on that umpteen years ago. You know, I don't remember exactly when they signed. Two years ago. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: And then the other day I noticed they've, you know, retracted that, you know, objection, so to speak. So that's the differences between maybe boards, associations, presidents, you know, involved. But that stands. I -- I'm not trying to be rude, but the permit has been issued and it's -- it's authorized per state and federal. So that's kind of the history of it. Now, the other changes that I have proposed or they have proposed and we are here today presenting to you, is we're -- we're trying to modernize the facility. And what does that consist of? It consists of making the slips a little bit wider and ultimately adding a kayak launch, and -- and so that changes the grandfathered structure. Right? So that's why -- that's the only reason we're here today, basically, is we reduced the width of the existing finger piers from 5 feet down to 4 feet in order to get additional beam width in between, so that the vessels in there have a little bit more buffer. That was one change. And then -- HEARING EXAMINER DICKMAN: So to be clear, like, you're going to have two vessels within each -- MR. ROGERS: Correct. HEARING EXAMINER DICKMAN: -- slip? MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: One on that side, one on -- okay, that's -- MR. ROGERS: Yeah, 100 percent. So -- HEARING EXAMINER DICKMAN: Are they on lifts or just – MR. ROGERS: No, no lifts. There's no room for lifts. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: They're in water slips. The beam -- the -- we would have to ultimately reduce the slip count and push the finger piers out even further to create enough space for actual boatlifts to fit in there. So standard boat lift size is 12 feet width. HEARING EXAMINER DICKMAN: So the finger piers are 4 feet now, right? MR. ROGERS: Yep. HEARING EXAMINER DICKMAN: And you think that's safe -- I mean, they're -- they're going to be accessing just one side of the boat. That's safe enough? June 27, 2024 Page 11 of 28 MR. ROGERS: Yeah. I mean, ultimately that's all we can fit in order to maintain the eight slips that they basically have and have had for their residents, and basically eliminating two slips. There's two residents that are -- I mean, that are going to ultimately lose their slips, and that would be a significant issue for the HOA to deal with -- HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: -- that I legally don't want to even get involved in. So how can I maintain the eight slips and still provide a safe access? 4-foot finger pier is the smallest I would ever want to go. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: So there is no ADA requirements here. So if there were, we would have to have a probably 5-foot -- HEARING EXAMINER DICKMAN: It's not commercial. MR. ROGERS: It's not commercial. HEARING EXAMINER DICKMAN: Right. MR. ROGERS: So it's not applicable in regards to ADA. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: So let's move forward a little bit. I've got some better drawings. So here's the historical aerial. So here's an -- here's an existing aerial that I took. And why is this unique? Because it does show a vessel that was brought up in numerous of these letters. And I'm -- I -- I'm kind of jumping all over the place here without touching the criteria yet. I'm not sure if that vessel was even stored at this facility unless it washed in. So in regards to the hurricane cleanup, I do want to touch on this, because it's the obligation of the boat owner to have a boat removed. And if over time -- say I owned that boat and I was not responsive to taking it, the government, Homeland Security, someone would come in and take it out and then they would chase me through the federal bureaucracy of probably the IRS to make me then pay for it. Right? So the HOA does not have that ability to -- to chase someone down. So if they paid for that to be removed, they're on the hook, and they would -- it would be tough to get reimbursed for that cost. So that's one of the reasons that vessel was there. It wasn't -- it was on the owner to remove. I'm not sure if they couldn't find the owner. I really don't know the answer to that. But I do know the process of how it works to get hurricane removal done. HEARING EXAMINER DICKMAN: And that came after Ian. MR. ROGERS: That was after Ian, 100 percent. So -- and I do want to stress that this building, just so you know, is a parking garage. Okay? So it's open underneath this tennis court. This tennis court is on the roof. Why is that important, in my opinions? Because the surge that came in from the beachside -- right? -- was able to go through this building; where the other buildings, the water went around it. Right? So the water was able to go right through this building. So this place took it on the nose compared to other docking facilities along the subject waterway, where the condos were able to deviate the water around the building. And, yes, docks were impacted and so forth and so on, but this place really got hit hard compared to some others on the subject waterway. So that's an item I just want to point out to you. HEARING EXAMINER DICKMAN: Okay. June 27, 2024 Page 12 of 28 MR. ROGERS: So moving -- looking at this, you can see the land lease of the existing conditions. You can see the dimension from the edge of dock to the edge of -- of our riparian line, which is 11 feet. Up here, it's 12 feet. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: So that's existing conditions. Right? Finger piers lengths, here we're 24 feet. As proposed, we're only going one more foot out. We're going 25 feet. So that's the only increase in the overall protrusion. But I do want to show you two existing lines. This line out here, this black dash line that runs here, is our existing land lease boundary that we maintained. So the only land lease changes that I made with the state was bringing this line to our riparian line and creating an area here for the kayak launch. Those were the changes to the state land lease boundary. So, again, I'm losing my grandfathered structure with the state making those changes as well. Okay? HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: All right. So moving forward, let's get into the extension. There's the eight slips of existing. Keep proceeding, if you would. So here's proposed. This gives you an example of what we're doing. So as proposed, the applicant is requesting a 39-foot boat dock extension from the allowed 20 feet, for an overall protrusion of 59 feet out into the waterway. That is current, and that is how it is today. I'm not increasing that. Vessels are allowed to extend out that far. The finger piers are getting one foot longer. There's 25. And they are getting skinnier to create, like I said, more buffer room for the vessels in there. The black dash line is my land lease, just so you know reference-wise. And this is important, too. The state makes us lease this area above the mean high waterline because historically that was water. So that tennis court -- a portion of that tennis court parking lot was in -- linked in my land lease. So this is a very unique historical mess, basically, for this site. HEARING EXAMINER DICKMAN: Told once that this bayou was actually open on Vanderbilt -- MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: -- at some point, and – MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: -- it was part of the intracoastal. Is that true? MR. ROGERS: Yeah, it is, yeah. Just like Wiggins Pass, Clam Pass -- HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: -- those passes don't have jetties on them. Right? So they naturally shift and move with the sand. Right? HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: And that's historically just how Mother Nature works. And new passes would open because the water's going to come out. As we all know, water is going to find a way. Keewaydin, even after Ian, blew open a new pass – HEARING EXAMINER DICKMAN: Really? June 27, 2024 Page 13 of 28 MR. ROGERS: -- this year. Yeah. On the north third of it. And so there's a new -- literally, if you go down south of all those buildings, that Donahue old property, working your way south, probably a mile out of that there's a pass that blew open. HEARING EXAMINER DICKMAN: Really? MR. ROGERS: Yeah. So nature does do what she does. And you are correct. If it is a natural waterway, it forces through. Okay. So with all that being said, part of the request is the companion item for the variance. And you can see here, we are requesting a zero-foot setback. However, we are maintaining the use on the north side that we are allowed a slip to be right up on the riparian line historical. And we have cleaned up the south side to actually contain the vessel and mooring piles all within our riparian rights area, slash -- not property, but ownership, allowed ownership use. So that's significant. So running through the criteria, I do want to touch on all this because of all of the objections that have come out, just to get it on the record. So with the boat dock extension, primary criteria number one, whether the number of dock facilities and/or both slips proposed is appropriate in relation to the waterfront length, location, upland land use and zoning. Yes. This is a multifamily docking facility that is allowed one slip per unit typically. Has eight slips, which is well under the actual unit count that they have, but it matches historical use. Number two of the primary, whether the water depth at the proposed site is so shallow that a vessel of the general length, type, and draft, as described by the petitioner is unable to launch or moor at mean low tide. And this is a great one to look at, the one on the screen. Here is our point of protrusion, which were -- is the most restrictive point, and this -- this dimension that you can see out to the main walkway, that's 30 feet. So with the -- HEARING EXAMINER DICKMAN: 20 feet would be short of – MR. ROGERS: Yeah, it would be in the rocks, in the riprap, so to speak. They are putting a seawall in. They -- they do have -- well, they have authorization to put a seawall in per the state, to change that shoreline, to harden the shoreline a little bit, to help provide a little bit more protections of the dock. So that is one change that is also not being presented to you today but also potentially could happen, which is not the most restrictive point. I had to put the wall at the mean high waterline per the state. You can't go out further, claiming more land. Right? So we put it right at the mean high waterline, which does change the natural shoreline, but riprap is required by state to be -- to stay there, to contain habitat area for mangrove growth. So that's number two. Water depths. Yes, we meet that. Number three, whether the proposed dock facility may have an adverse impact on navigation within the adjacent marked or unmarked channel. Moving forward, if you would, on the slides. Go again, if you would, one more. Here's the waterway -- go back one. You're okay. No problem. So here's the waterway. It wasn't right for me to use this as the width of waterway, working with staff. So, obviously, most of this site is kind of more on the open waterway, so we decided that it is still within 25 percent, based off this minimal waterway width. And, again, this whole area is open through -- for navigation, is a mandated no-wake zone, minimum speed. So there aren't boats blowing through here. And, again, the docking facility is not protruding out any further than what it -- it really is authorized -- or a vessel could authorize to extend out into. June 27, 2024 Page 14 of 28 HEARING EXAMINER DICKMAN: There was a recent case in this area. Was that one of these? Oh, I don't think it was you. I think it was someone else in -- MR. ROGERS: Naples One, or are you -- all the way down, or Watermark? The larger dock? HEARING EXAMINER DICKMAN: It was multiple -- it was a condo with multiple slips. MR. ROGERS: And it went further out; right? HEARING EXAMINER DICKMAN: Yeah. MR. ROGERS: Yeah, that was me. That was -- that's the Watermark condo. It's south of here, on the -- on the same shoreline. And they have an open shoreline. They don't have an existing docking facility. HEARING EXAMINER DICKMAN: Right. MR. ROGERS: And they pushed out into the waterway because they are on this larger bay section. Right? Here, that is an option for us, technically, to go out further in order to maintain the eight slips. State and federal would authorize that. Because of the 25 percent, technically they would, just so you know. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: That would be subject to the county process still, obviously. But we're trying to be as minimally impactive and consistent with what's currently in place -- HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: -- and basically allow already existing. These guys have a boat dock extension. This is La Playa. We did -- Turrell, Hall & Associates did that. HEARING EXAMINER DICKMAN: Are they going from property line to property line, I mean, or boat slips -- MR. ROGERS: These guys just to our north, they do maintain the 25-foot setback requirement. HEARING EXAMINER DICKMAN: Yeah. MR. ROGERS: The La Playa does encroach in that and got setback waivers signed. You know, it is tough to do -- to accommodate the one slip per unit owner without going further out into the waterway or some kind of encroachment or variance request. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: I believe La Playa did go through a setback waiver as well as the boat dock extension. The ones just to our north -- I think that's La -- Le Dauphin, I believe. They definitely have a BDE. I looked at it yesterday on the zoning map. I couldn't figure out the protrusion authorized on it. But if you look closely, their finger piers do stick out well beyond -- not well beyond. They stick out further than we do -- HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: -- and currently are authorized. The guys to our south are a little bit more -- they have a boat dock extension as well. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: However, they are less protrusion out into the waterway, and they do maintain the 25-foot setback. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: But I don't think they know what was really authorized at the Villas -- HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: -- you know, per historical approvals, because of the encroachment of the mooring piles and so forth and so on. The facility is just not used all the time. June 27, 2024 Page 15 of 28 HEARING EXAMINER DICKMAN: Are the Villas across the street? MR. ROGERS: Yes, sir. Yeah. So they are here. This is their parking garage and tennis court, as well as their access. So one of the improvements is to get more of their residents access to the waterway by putting in the kayak and paddleboard launch. So that was, you know, one of the changes that drove us to have to come here today, basically, from what was originally authorized. So keep moving forward. HEARING EXAMINER DICKMAN: Let me ask a question of Sean. What do you call that -- and I know you've dealt with this before -- where the lot is split?I mean, the principal use is not on this lot, but it's split between -- it's split between -- the lot is split by a right-of- way and it's -- you know, because usually you have the principal use on the lot where the dock is. I thought there was a term for this. Because we have dealt with other situations like this on Gulf Boulevard in this area. MR. SAMMON: Sorry. Sean Sammon, for the record. Like an accessory structure to the lot? HEARING EXAMINER DICKMAN: I'll think of it. MR. SAMMON: Okay. HEARING EXAMINER DICKMAN: It will come to me. I know we -- I know there are some other lots, even residential lots, on Gulf Boulevard, Gulf -- Gulfshore, up north, where the Gulf of Mexico properties actually own part of the intracoastal, a small part of it. MR. ROGERS: Yep, you're right. HEARING EXAMINER DICKMAN: And so that -- okay, yeah. You know what I'm thinking about. Because I'm more -- you know, the -- the issue of, like, having a principal use on the -- on the main property. I got it. MR. ROGERS: Right. HEARING EXAMINER DICKMAN: But they're tied together. They're unified together. MR. ROGERS: Correct, yes, sir, yeah. HEARING EXAMINER DICKMAN: Even though they have a road between them. MR. ROGERS: There are. And there are single families north of us that do have that, and we have done some boat dock extensions there. HEARING EXAMINER DICKMAN: Oh, really? MR. ROGERS: Yes. So this is unique, but it's more common for this section of Collier County, let's say. HEARING EXAMINER DICKMAN: Yeah. MR. ROGERS: So moving forward, criteria -- primary criteria number four, whether the proposed dock facility protrudes no more than 25 percent width of the waterway. The answer to that is yes. I believe we're at, like, 8.3 percent of the waterway. And on the wider section, it would be 5.4 percent, so -- HEARING EXAMINER DICKMAN: Are you -- you're using the most restrictive number; right? MR. ROGERS: Yes, sir, 100 percent. HEARING EXAMINER DICKMAN: I think that's a smart move, because I -- I think that's just -- in situations like this, I mean, I know you can shoot it out different ways, but I think it's smarter if -- you know, in situations like this, to use the calculations that's the most restrictive. June 27, 2024 Page 16 of 28 MR. ROGERS: Yeah. That was the safest dimension to use. And that was driven by the county staff, and I totally agreed with that and have no problem with that. Number five, whether the proposed location and design of the dock facility is such that the facility would not interfere with the use of neighboring docks. It is, because we are basically perpendicular to the shoreline, as everybody else is. However, we do encroach in the setbacks -- not – not encroach -- yeah, we do encroach in the setbacks, but it's a current use that we're just replacing and modernizing. HEARING EXAMINER DICKMAN: But to be clear, you're encroaching into your setbacks, not their setbacks? MR. ROGERS: Correct. Yes, sir. Yeah. And now we've -- we've -- and we've cleaned that up, too, to not encroach into their setback as well. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: So that criteria is also met for the primary. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: Quickly moving forward. Secondary criteria number one, whether there's special conditions not involving water depths related to the subject property or waterway which justify the proposed dimensions. And in this case, it's the existing conditions, the grandfatheredness, maintaining that footprint, as well as the natural riprap/mangrove shoreline to get out past that, are all the handful of conditions that we have to work with. HEARING EXAMINER DICKMAN: Well, you're not really maintaining the exact footprint; right? MR. ROGERS: The -- the -- HEARING EXAMINER DICKMAN: That's -- so you're changing it in order to accommodate newer vessels? MR. ROGERS: Yeah, yeah. HEARING EXAMINER DICKMAN: And so you're losing your grandfather -- MR. ROGERS: 100 percent. HEARING EXAMINER DICKMAN: Although you're maintaining your -- your submerged land lease. MR. ROGERS: Right. HEARING EXAMINER DICKMAN: Riparian. MR. ROGERS: And what I don't know, and -- thinking about this, you know, more in depth is could we just go in and get a building permit tomorrow per se to rebuild what was there? HEARING EXAMINER DICKMAN: Could. MR. ROGERS: I -- the answer to that is, I believe, yes. HEARING EXAMINER DICKMAN: Probably, yeah. MR. ROGERS: Yeah. So I would just have to change the state stuff, which they're -- it's -- we could easily approve that that's what was there historically and that would happen. So that's what I want to make clear and get on the record to some of the residents in the area, that this is maintaining what there is and we're improving upon it, but we are changing the overall footprint slightly, which is why we're here today. HEARING EXAMINER DICKMAN: Right. MR. ROGERS: So number two of the secondary, whether the proposed dock facility would allow reasonable safe access to the vessel for loading, unloading, and routine maintenance. June 27, 2024 Page 17 of 28 Yes. We talked about this. If you'd go back a slide, just to show it on the picture. Go back a couple slides. Keep going. There you go. So it's tight. Four foot is tight, but it is the minimum that I would recommend and say is safe. HEARING EXAMINER DICKMAN: Where are the pilings going to be? On the outside of each one of these things? MR. ROGERS: They'll be -- they'll be recessed into the dock 6 inches and will extend out 6 inches. So it's a one-foot piling. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: So the walkway clearance between the piles will be actually 3 and a half,. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: So it's a -- it's pinch point. So with the state, it's the overall shaded footprint that I have to show them out. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: So that's 4 foot. HEARING EXAMINER DICKMAN: And this is 4 feet as well? MR. ROGERS: Yes, sir. Yeah. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: Yeah. Everything's 4 feet except for the walkway HEARING EXAMINER DICKMAN: This is 5 feet? MR. ROGERS: Yes, that's 5 foot wide out. Yes, sir. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: So that -- that's as small as I would want to go and still be, you know -- provide the safe area that we need. Number three, for single family dock facilities, that -- that's what number three pertains to. That's not applicable here. This is a multifamily facility, which that question pertains to length of shoreline vessel, so that's not -- can't apply that here. Number four, the secondary, whether the proposed facility would have a major impact on the waterfront view of neighboring property owners. I would say no, because it's an existing facility. However, today it's in derelict condition. So I understand some frustrations of the current state that it's in, but we're here today to basically get -- finally get authorization to do what we have been trying to do for years, which I do understand it's been a long time coming, but there was a lot of hurdles and storms and things that we had to deal with before getting to this point, which did delay me pushing this, the county, to get this to this point, because the applicant said, "Let's hold off, we're overwhelmed with what's going on," so the dock was secondary. HEARING EXAMINER DICKMAN: I have a question. MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: I presume that there will be, like, mooring piles out here? MR. ROGERS: No. It's on them to -- HEARING EXAMINER DICKMAN: Is it really going to just be, like, moored up against -- MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: -- the side of it? MR. ROGERS: Yeah. Well, the dock will have piles. Right? HEARING EXAMINER DICKMAN: Yes. MR. ROGERS: To fend off of, but there will be no mooring piles on the outside at all. HEARING EXAMINER DICKMAN: And no mooring piles on the inside of this? MR. ROGERS: They could add those, yes, but it just wouldn't be able to accommodate a boatlift. So that -- that would be allowed in the middle there. And I would say that they would want those there, like you're pointing out. June 27, 2024 Page 18 of 28 But these, no. It's on them to maintain that width of 10.6 on the south side and 11.2 on the north side. HEARING EXAMINER DICKMAN: So if somebody brings in a large vessel here and it goes over the riparian line -- MR. ROGERS: They're out of the compliance with the state and the county. HEARING EXAMINER DICKMAN: Okay. We're going to make that a condition; right? MR. ROGERS: That's fine. Yes, sir. Totally. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: We have to. They have to per this land lease. If -- if a bow pulpit -- if your engine, an outboard engine, goes in the up position, extends out past the boat -- if that's overhanging the boundary, the state can -- will and do come after you, basically. HEARING EXAMINER DICKMAN: And each one of these slips will be assigned to a particular unit? MR. ROGERS: Yes, sir. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: Yep. HEARING EXAMINER DICKMAN: All right. MR. ROGERS: Okay. So number five of the secondary pertains to seagrasses being within 200 feet of the area. And no, there's not. I dove this site once -- at least once a year over the course of the last three or four years I have been working on it just to maintain that and verify that. So, no, there's no seagrasses here. Number six pertains to the Manatee Protection Plan, is it subject to the protection requirements. I stated that it's -- it's not. And staff ended up agreeing -- disagreeing on this. It was a -- and I want to talk -- I want to clarify this, because the facility was existing prior to the MPP being adopted. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: So any docking facility that was in -- existing prior to that was grandfathered. It was allowed to stay within the existing slip count. When they adopted the MPP, that's how it was done. So this place had eight slips. It was granted that. And that's why this -- also the submerged land lease was issued with the state, because the state couldn't push back on that. It was established and written out in the MPP when they -- when the county adopted that, that that's how it was going to be. So we're just trying to maintain that and just utilize, you know, what we're allowed. The Manatee Protection Plan, as a preferred site, would allow us to do 18 slips per 100 feet of shoreline. HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: As a moderate ranking, you would be allowed 10 slips per hundred feet of shoreline. And then a nonpreferred or a bottom ranking one -- I forget what we labeled that as -- it's only one slip per hundred feet. In this case, we would qualify as preferred, just so you know. And we do have, I believe, a hundred feet of shoreline. Where are you going to put 18 vessels or -- you know, nowhere, without going further out into the waterway. Right? So that is just a talking point, something to think about. So that basically wraps up the boat dock portion of the criteria. The other companion item that is with this is the side yard setback variance, which we have been talking about all along. Do you want me to get this all in the record, too, the criteria? HEARING EXAMINER DICKMAN: I think you should. MR. ROGERS: Okay, I agree. So the variance request is for a zero-foot setback line, which -- you know, from the required 15- foot setback that the county has. Now, the state does require a 25-foot setback. However, letters of no objection setback waivers were provided to me when I was -- HEARING EXAMINER DICKMAN: At that time. MR. ROGERS: At that time. And were submitted to the state, and since the state permit was June 27, 2024 Page 19 of 28 issued. And if those were not provided to me at that time, it's that -- we would not be here asking for eight slips. We would -- I don't know what the applicant would want to do at that point. But the HOA president did meet with that HOA president at the time, whatever the date is on those letters. I don't have that in front of me, but I know it's in your -- in your items. Signed off on it. So -- so, anyways, with that, let's go through the criteria. Number A of the criteria for -- for a variance is are there special conditions and circumstances existing which are particular to the location, size, and characteristics of the land, structure, or building involved? And basically, you know, there's numerous special conditions here. The mangrove shoreline is one. Also, the existing slip allowed, authorized slip use, per the historical use, which was granted and the paperwork is there, maintaining those slips, basically improving that -- in my opinion, we're improving that setback by bringing it into our riparian area and no longer hanging over the southern property line, riparian line, just made sense to do. And it didn't ask for any further encroachment into adjacent property. So that was, I thought, a good thing to try to do if we're going through the process. B of the criteria is are there special conditions and circumstances which do not result from the action of the applicant, such as preexisting conditions relative to the property which are subject to the variance request? Again, we're beating a dead horse here with the grandfathered structure, the grandfathered use, the grandfathered slip count. These are all, you know, special conditions and circumstances from the state to the feds to the local municipality here, being Collier County, that this facility just predates those rules. Number C of the criteria is will a literal interpretation of the provision of this zoning code work unnecessarily and undue hardship on the applicant or create particular difficulties for the applicant? And in this case I would say, and we did say, yes, and I believe staff concurred, that we would lose two slips. And that is a big deal because the HOA -- in the HOA documents that they abide by, their rules, state that there's eight slips and have been eight slips. So if we didn't get the variance request, we would have to look at other options in regards to further protrusion out into the waterway, because -- in order to maintain the eight slips. Right? So that would push us further out, be more impactive, be another hurdle we would have to get through in regards to the boat dock extension criteria. And it just makes sense to try to maintain the footprint as much as possible and the slip count that has historically been used. So, you know, that's what we tried to do when we looked at this: Let's utilize what's been there and try to make it -- improve upon it and make it a little bit more modernized at the same time. HEARING EXAMINER DICKMAN: Just so you know, like, I mean, I understand the condo docks may say eight slips and -- MR. ROGERS: Uh-huh. HEARING EXAMINER DICKMAN: -- and whatnot, and there are ways to change condominium documents, but I'm not really concerned with those -- MR. ROGERS: Okay. HEARING EXAMINER DICKMAN: -- private docs, private documentation. That's between them and -- them and them. MR. ROGERS: Right. HEARING EXAMINER DICKMAN: I'm here to look at the county code -- MR. ROGERS: Okay. HEARING EXAMINER DICKMAN: -- with regard to docks – MR. ROGERS: Understood. HEARING EXAMINER DICKMAN: -- and dock extensions. June 27, 2024 Page 20 of 28 MR. ROGERS: Understood. HEARING EXAMINER DICKMAN: But I understand the problem you're referring to. MR. ROGERS: Especially if they -- they don't deed these. They did not deed these slips to a certain slip owner, but they -- it's a grandfathered accessory use of the -- for some owners, you know, a handful of them out of -- I don't know how many units there are. I should know that, but I don't. So I understand what you're saying. And those documents can be revised. I don't know how you do that, but -- in -- HEARING EXAMINER DICKMAN: Or whatever, I mean – MR. ROGERS: Right. HEARING EXAMINER DICKMAN: And people lose them. I just don't want to get involved MR. ROGERS: In that. HEARING EXAMINER DICKMAN: -- in evaluating condominium documents. MR. ROGERS: Okay. Understood. D of other criteria. Will the variance, if granted, be the minimum variance that will make possible the reasonable use of the land, building, or structure in which prominent standards of health, safety, and welfare? Again, yes, there has been some objection letters submitted. And I think -- I took numerous phone calls, just so you know, from people to the north and to the south about this. And the people that I spoke to seemed to be really confused on the request. They were -- their understanding, to me, was that this zero setback was going to be for the uplands as well and allow structures to be built. HEARING EXAMINER DICKMAN: That's just -- MR. ROGERS: The parking garage -- I -- I know. They did. I don't -- I didn't get it. So I had to walk them back on that and -- and ask them to understand the petition request was pertaining just to the docks, and nothing upland of the mean high waterline was affected by this approval, if granted. So I spoke to the HOA president on the Le Dauphin north side, Steve Walter, this week. And basically he was asked by the HOA president to the south to object to it. And I clarified what we were asking for, and he -- he said, "I'm good. I was -- seems like there's confusion in regards to this request pertaining to the upland portion." And I was -- I said, "No, sir, that's not at all what we're requesting here." So the point being is, you know, we've reduced -- we've encroached into the setback, but, again, we're maintaining the use that was there and authorized historically. So there is no additional impacts, in my opinion, to health, safety, and the welfare of the adjacent properties. So number E of the criteria, 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? I mean, yeah -- I mean, by definition, a variance is a relief from zoning requirements. Right? So, yes, I mean, this does -- this is one criteria, I guess, that we do not meet of the variance. It is a special request and -- and to encroach on the setback that most people have to follow. F, 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 others, detrimental to the public welfare? Again, I mean, it's -- it's the waterfront property -- or it's a waterfront neighborhood; boats and docks are common. However, again, we are encroaching into the setback, but it is a historical use, and we are allowed to do -- allowed to potentially rebuild what was there historically and utilize those slips with -- with vessels. But, again, the changes we're proposing bring us back through this process. So, you know, that's one thing I was trying to avoid when I started working for these people, is trying to come back through here, because I knew this could be, you know, public concern, knowing the area, but here we are. So they decided to proceed. June 27, 2024 Page 21 of 28 G is, are there natural conditions or physical -- physically conditions that -- oh, jeez -- illiterate the goals and objectives of the regulations, such as natural preserves, lakes, golf courses, et cetera? The subject waterway is a natural waterway that's been man-altered over the course of years, as you know, but a large -- large sections of this waterway are natural, slash, state lands, which those rules tend to be more restrictive than the county rules. Again, it's a grandfathered structure per the state criteria, so it's, you know -- staff concurs with our -- our -- you know, our response to that. H, will granting the variance be consistent with the Growth Management Plan? Yes. The approval of the variance will not affect or change the requirements of the GMP with respect to density, intensity, compatibility, and basically land uses allowed within the area. So that closes off the criteria for the variance as well. I am happy to go over this, but real quickly, just for the record, the applicant is requesting a 39- foot boat dock extension over the allowed 20 feet, which is a total of 59 feet, which is what they are allowed to do today, with a vessel hanging out that far. So -- and setbacks are -- HEARING EXAMINER DICKMAN: Can I ask -- MR. ROGERS: -- being approved -- HEARING EXAMINER DICKMAN: -- you a question about this? MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: Looking at the kayak launch -- MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: -- is that -- is that kind of designed like a -- almost like a boat ramp, or -- MR. ROGERS: Basically, yes. HEARING EXAMINER DICKMAN: And so it's going to be coming -- MR. ROGERS: The slide -- HEARING EXAMINER DICKMAN: -- coming into this area; right? MR. ROGERS: Yes, sir. HEARING EXAMINER DICKMAN: And then they're going to have to either go north or south to get – MR. ROGERS: It's a – HEARING EXAMINER DICKMAN: -- out into the open water? MR. ROGERS: Yeah. If you'd go back a slide or -- HEARING EXAMINER DICKMAN: Yeah. MR. ROGERS: -- two, please, if you would, I'll show you the footprint. HEARING EXAMINER DICKMAN: There. MR. ROGERS: Actually, there it is. That's a good one. The launch is on the south side of the walkway, so they're going to have to paddle around the south and then get out to the -- HEARING EXAMINER DICKMAN: Or this one. Well, there's how much room here? MR. ROGERS: They would have to go underneath the dock, which I guess they could do, you know. But my assumption is most of the dock guys or, you know, patrons are going to go south and outward. HEARING EXAMINER DICKMAN: All right. MR. ROGERS: So any other questions other than that? I'm pretty much -- HEARING EXAMINER DICKMAN: Well, here's -- no. But -- so Irma, Hurricane Irma, was mostly a wind-related hurricane. MR. ROGERS: Uh-huh. HEARING EXAMINER DICKMAN: As you know, during Ian -- I'm sure you inspected this June 27, 2024 Page 22 of 28 whole area after Ian, since you have a lot of facilities in this area. And there were literally boats in trees and boats in yards and boats all over the place. So it doesn't surprise me that somebody's, you know, left a boat there. It means they probably can't find the owner. And most of the time -- many of these owners are gone during the summer, you know, they're seasonal. So if the -- if -- if the 15-foot storm surge from Ian did that to, you know -- as you said, it came underneath the -- through the parking and hit the dock, and those -- those boat -- what happens to those boats? Do they have a policy on what they're going to do with those boats? I mean, it's -- it's -- MR. ROGERS: Like the car situation, there was, you know, a new junkyard created out by Lake Okeechobee with all the cars. The boats were also taken to a facility in Fort Myers, piled up. Insurance companies get involved at that point, and most of them are inspected to see if it was -- the value was there to refab them -- HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: -- rewire, redo everything internally, because the hull's mostly a fiberglass. Right? HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: So there is still structural use to these. But based off the costs to do a gut job and rewire, most of the boats were deemed, you know -- HEARING EXAMINER DICKMAN: So these boats are – MR. ROGERS: -- destroyed. HEARING EXAMINER DICKMAN: -- going to be in the water all the time unless somebody puts it in dry storage or something like that, while they're gone. MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: Or can get their boat someplace when they see a storm out -- you know, coming in. MR. ROGERS: Yeah. One thing that you could do is, you know, require, you know, if a storm is, you know, going to hit us, that they remove them. That would be an HOA kind of driven requirement, just to structurally -- HEARING EXAMINER DICKMAN: Yeah, I'm not going to -- I'm just -- I'm just -- MR. ROGERS: Yeah, you're right. HEARING EXAMINER DICKMAN: I saw this area after Ian, and it was a very different storm than Irma. And the storm surge was just phenomenal in that area, and, you know, it just -- yeah. There are a lot of boats in this -- in this bayou now. MR. ROGERS: There are. And they're getting bigger in sizes, as you know, as well. HEARING EXAMINER DICKMAN: Yeah. MR. ROGERS: So I understand your concern, but yeah, I mean, even -- you know, I hate to go back to One Naples. Those are all in water slips, too. Most larger commercial facilities -- HEARING EXAMINER DICKMAN: Yeah. MR. ROGERS: -- you know, especially up by Wiggins Pass, those condos, Pelican -- maybe in Pelican -- HEARING EXAMINER DICKMAN: Yeah, they don't have – MR. ROGERS: -- Isle, you know -- HEARING EXAMINER DICKMAN: They don't buy these boats with trailers. There's really no place to take them. MR. ROGERS: They're -- they're, unfortunately – HEARING EXAMINER DICKMAN: No place to take all the boats. MR. ROGERS: -- I deal with this a lot in the county, and there's no place to take a boat these days. June 27, 2024 Page 23 of 28 HEARING EXAMINER DICKMAN: So just leave it up to insurance. MR. ROGERS: 100 percent. HEARING EXAMINER DICKMAN: Wow. MR. ROGERS: And it's up to you, as the owner, to protect your asset if you -- HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: So let me rewind on that. Some insurance companies these days actually -- I'm a boater. I have boats, and more boats in my life than I would like to admit, but I do, and a lot of clients with boats that I -- I manage and captain their boat for them. Right? So they are required to, in some cases these days, get their boats out of Dodge, and get them out of here from the months of June till October. Right? HEARING EXAMINER DICKMAN: Uh-huh. MR. ROGERS: Every year I have numerous clients that I run their boat all the way up to Alva. I go through Fort Myers, Caloosahatchee River, through the ditch to Lake Okeechobee, go through the locks, and it's only if -- it's a 50-foot boat. It's not -- I mean, it's big, don't get me wrong, but it's not huge, and I -- there's a dry stack out there in Alva. Guy's making a killing these days, because he's got buildings and he's building five more buildings, because boats come from Stuart, come from the east coast, through the lake, because the insurance companies do require you, in some cases, to get your asset into a safe hurricane-proof building. Unfortunately, there's not a lot more places in Collier County to build these places. We're actually working on the very last one potentially in Collier County right now, on Isles of Capri. That's just starting. So FYI, that's coming our direction, County. HEARING EXAMINER DICKMAN: Yeah. MR. ROGERS: But it's the last place to do it and -- that meets the standards for the MPP to create a new dry storage facility, because you have to have all the ducks in a row environmentally and waterway-wise to build a new structure like that. It's either that or you're trailering them and putting them somewhere high and dry and hoping. HEARING EXAMINER DICKMAN: Okay. It's time to go to public hearing -- public hearing. Do we have public speakers? MS. PADRON: We do have a virtual speaker. HEARING EXAMINER DICKMAN: All right. MS. PADRON: Ken Keltner. HEARING EXAMINER DICKMAN: Good morning, Ken. MR. KELTNER: Hello. Hello. HEARING EXAMINER DICKMAN: Hello. We can hear you. MR. KELTNER: Good morning. HEARING EXAMINER DICKMAN: Good morning. MR. KELTNER: Yes. My name is Ken Keltner. I have been joined in and listening to the presentation. Thank you for allowing me an opportunity to speak. HEARING EXAMINER DICKMAN: You're welcome. Go right ahead. MR. KELTNER: I'm a homeowner and have been since 1971, at La Scala, which borders the isle -- the Villas of Vanderbilt. HEARING EXAMINER DICKMAN: Uh-huh. MR. KELTNER: I'm concerned about the variances that will be allowed under these conditions, the first one being that in the last storm we had, and in any storm we have, the boats have to be -- and there was a boat, as you could remember, that was in that tree, that mangrove tree, for over a year. It's still there, earlier in -- up until late last year. And there is a 15-foot setback on either side -- June 27, 2024 Page 24 of 28 easement, excuse me -- easement on either side of our property line, which allows the barges to come in and clean out the -- the trash, the boats, the trash cans, and whatever out of the mangroves and out of the bushes. If they build on that site, zero lot line, and take away the easement, the barge cannot get in through our 15-foot -- our easement. It's too wide to get in there. So the cleanup would have to come from landside. So with giving up the easement all the way to the street, we would be forced to accept their land cleanup to come onto our property, through our driveway, to clean up their property, because the boat can't do it. So I think that's asking a little bit too much of our site, for us to give up -- and for them to maintain that 15-foot easement. The easement is put in there for one reason and one reason only: to ease the property cleanup. And by the state or the county taking that away, it's destroyed. I did talk to -- and I clarified it. Steve Walter, the guy you talked to, is a good friend of mine, and he did not talk to the president of the H -- of HMO. He talked -- I called him. And he appreciated your call. And he was concerned. He called me back, and we talked. And he really didn't get the true understanding. And he's a busy man, and he didn't have time to -- to spend time to take a look at it. But he's not aware of the cleanup easement problem that would occur. I have been there since '71. I'll tell you, the first time I have seen it there, the manatees are hanging around the mangrove root right there at the base of the Villas of Vanderbilt. And there must be a manatee habitat there, because that's where they hang out, and they come out of there. And I'm afraid that building on there will upset the manatee. It may be a manatee breeding ground. I don't know. I'm not a manatee specialist, but I love seeing the manatees. They're -- you see one, I mean, it's -- it's -- it's a glorious day. So I'm concerned for the manatees. I'm concerned for the easement loss. And I wish them well with their new big boats, and I -- and I enjoy boats as well, but not at somebody else's expense. Thank you. HEARING EXAMINER DICKMAN: Thanks. I appreciate your comments. Okay. Any other speakers? MS. PADRON: I don't have any additional speakers. HEARING EXAMINER DICKMAN: All right. Jeff, if we could address two things here. I believe what the speaker was talking about when he referred to easements are the -- the adjoining setbacks, I think. So if you combine the two, you've got quite a bit of space, right, on either side -- MR. ROGERS: Right. HEARING EXAMINER DICKMAN: -- and that allows for any cleanup. But do you want to address that? MR. ROGERS: Yeah. I mean, the -- I want to make clear that we're not putting a dock, a structure, fixed structure, on the riparian line here. It's a vessel that, you know, we're -- on the south side, I believe it's 10.6 feet from the structure to the riparian line. So we're 4.4 feet off of the required 15- foot setback there, if my math's right. And then on the north side, it's -- it's 11.2 feet. So we are providing a structural setback. We're just not right at the 15 feet. And, plus, if you tie a vessel onto that, that's the worst-case scenario, which is why we are requesting zero-foot setback here. So if the vessel is there in that slip, he is correct, the 15-foot area setback is -- is occupied, so -- but that's why we're here today to make this request. HEARING EXAMINER DICKMAN: So according to your plans, on the south side there's 10 and a half feet -- June 27, 2024 Page 25 of 28 MR. ROGERS: Right. HEARING EXAMINER DICKMAN: -- to the riparian line. MR. ROGERS: Correct. HEARING EXAMINER DICKMAN: On the north side, it's 11.2 feet. MR. ROGERS: Correct. HEARING EXAMINER DICKMAN: On the north side. There are no piles on the outside on either one. So if a barge or something needed to get in there, that vessel could be moved -- MR. ROGERS: 100 percent. HEARING EXAMINER DICKMAN: -- correct? Correct? Because there's not a lift there at all. It's just being moored to the -- to the dock, to the finger pier. Right? MR. ROGERS: Correct. HEARING EXAMINER DICKMAN: Okay. MR. ROGERS: Yeah. So we are providing a setback from -- with the structure, let's say, in regards to -- but it still does not meet the county's requirement of -- HEARING EXAMINER DICKMAN: No, it – MR. ROGERS: -- 15 feet. HEARING EXAMINER DICKMAN: It's still smaller than that – MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: -- but it's -- yeah. MR. ROGERS: With that area, a typical barge width, you guys -- it's just a -- you know, a 30-foot wide barge is a typical construction barge in Collier County. HEARING EXAMINER DICKMAN: Right. MR. ROGERS: So 15, 15, 30 feet, you know what I mean? So we would technically, you know, overhang that if a barge were to try to nose up against the property, let's say. But those barges do also have large cranes on them that can reach pretty far and potentially reach over the structures to lift things up as well. So, you know, there's many ways to do marine instruction. HEARING EXAMINER DICKMAN: All right. Okay. Regarding the manatees, speak to that. MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: I know you spoke to it already, but I want you to address it. MR. ROGERS: I totally agree. I mean, manatees could be utilized this area more, because there aren't any boats there right now. HEARING EXAMINER DICKMAN: Vessels there. MR. ROGERS: You know, it could be a safe area in regards to them getting away from some of the boat traffic.Not going to deny that nor really say one way or another. But it's -- you know, we are allowed to -- we do meet the Manatee Protection Plan criteria. Even if we weren't a grandfathered structure, we would still qualify as a preferred ranking, like I touched on before. Was there seagrasses in the area? No. But do manatees potentially eat mangrove leaves and reach up out of the water for them? Yes. HEARING EXAMINER DICKMAN: That's what I was going to ask, because the riprap that you're required to put in is ostensibly also for the -- for mangroves to take root; right? MR. ROGERS: Right. HEARING EXAMINER DICKMAN: And so – MR. ROGERS: Yeah. HEARING EXAMINER DICKMAN: You think a few years ahead of time, you may have, like, a pretty full shoreline of mangroves that would be in the water that potentially, you know, that creates a - June 27, 2024 Page 26 of 28 - the whole point -- MR. ROGERS: An even more -- HEARING EXAMINER DICKMAN: -- is to create an ecosystem. MR. ROGERS: Yeah. And it would be -- the mangroves took a beating on site with the water, so they are pretty rough right now, let's say. The state did make us mitigate for the impacts to those mangroves. Basically we've -- they've -- the applicant financially paid a large check to a land bank, a mitigation land bank. Yes, it's north of us, not in the same watershed, to help preserve mangroves up there, but also we're supposed to naturally let the shoreline recruit future mangrove growth. HEARING EXAMINER DICKMAN: Why did they require that? Did you cut them back? Did they cut them back? MR. ROGERS: Yeah. We're proposing to basically get rid of them and -- and -- because they are in such a mess and not in great health. If you were to drive by it, they're pretty, you know, mangled. Definitely better now than they were post-Ian, obviously, but they -- this way, they can then control the new growth and maintain it. HEARING EXAMINER DICKMAN: Are you replanting any? MR. ROGERS: We weren't required to replant, so we just mitigated offsite all of it, but we are on hook to let it naturally recruit in the area. And when -- why do we do that? Because when you have new mangrove growth, you're allowed to maintain them at a certain elevation for a view. But when you're -- I'm getting into the weeds here. But the state requires -- if you're taller than 10 feet from the substrate with the tree, you can only reduce the height of those trees 25 percent on an annual basis. HEARING EXAMINER DICKMAN: That's fine. Get in the weeds, because there's plenty of people who like to trim mangroves around here, so -- MR. ROGERS: Right. HEARING EXAMINER DICKMAN: That's a nice little speech. Thank you. MR. ROGERS: Yeah. So those are -- HEARING EXAMINER DICKMAN: Hopefully people are listening. MR. ROGERS: -- the parameters of the state to authorize a trimming and removal. HEARING EXAMINER DICKMAN: Got it. MR. ROGERS: Yep. Hopefully I touched on all -- HEARING EXAMINER DICKMAN: I appreciate you addressing those two issues. MR. ROGERS: Yep, no problem. HEARING EXAMINER DICKMAN: No more for the speakers; right? MS. PADRON: No, sir. HEARING EXAMINER DICKMAN: Okay. Anything else from the county? No? Sean, no? MR. SAMMON: I think we've touched enough weeds today. HEARING EXAMINER DICKMAN: You took the words out of my mouth. All right. Thank you for that on both items. Again, they're -- it a combined presentation, but I have to render two different, separate decisions, and I will -- thanks for being very detailed about it. I appreciate the speakers here. I will look at all of the -- the mail that has come in and all of that information and get a decision -- get decisions out as quickly as I can. Okay? Thanks. And I think that's it for today; right? MR. BOSI: Nothing more from the county. HEARING EXAMINER DICKMAN: All right. I appreciate it. Well, thanks, everyone. Putting on these meetings is a lot of work, and I do appreciate the efforts everyone does for me and the county and the public. June 27, 2024 Page 27 of 28 We're adjourned. ******* June 27, 2024 Page 28 of 28 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 MARIANNE E. SAYERS, COURT REPORTER AND NOTARY PUBLIC. 7/26/24 ✔