HEX Final Decision 2024-41HEX NO. 2024-41
HEARING EXAMINER DECISION
DATE OF HEARING.
July 11, 2024
PETITION.
Petition No. VA-PL20230005243 — A variance request from Section 4.02.O1.A, Table 2.1, of
the Collier County Land Development Code to reduce the minimum rear yard setback from
20 feet to 8.8 feet for a proposed single-family dwelling in the Village Residential (VR) zoning
district. The subject property, Folio No. 26082280000, comprises 0.15 acres located on the
west side of Smallwood Drive approximately 150 feet south of Demere Lane, in Section 36,
Township 53 South, Range 29 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner requests a variance to reduce the minimum rear yard setback for a proposed single-
family dwelling from 20 feet to 8.8 feet.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(2) of the
Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of
the County Administrative Code.
2. The public hearing for this Petition was properly noticed and conducted in accordance with all
County and state requirements.
3. The public hearing was conducted electronically and in -person in accordance with
Emergency/Executive Order 2020-04.
4. The County Staff presented the Petition followed by the Petitioner and/or Petitioner's
representative, public comment and then rebuttal by the Petitioner and/or Petitioner's
representative. There were no objections at the public hearing.
5. The County's Land Development Section 9.04.03 lists the criteria for variances. The Hearing
Examiner having the same authority as the Board of Zoning Appeals may grant, deny, or
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modify any request for a variance from the regulations or restrictions of the Collier County
.and Development Code. t
l . Are there special conditions and circumstances existing, which are peculiar to the location,
size and characteristics of the land, structure or building involved?
The recor°d evidence and testimony fi°om the public hearing reflects that the "Subject
property has several features that could be considered unique and peculiar, including the
shape, size, and location. This property tivas originally part of a larger tract in the
Smallivood's Subdivision ftorn 1902. Over time, these tracts were subdivided into smaller,
irregularly shaped lots. This property has a very unique shape, as shown on the survey.
Along the font property line are tvvo different tividths of rights-of4ay, which reduce the
depth of the property. The rear of the property is sharply angled and abuts a historic
cemetery. These conditions are not generally applicable to other lands.'
2. Are there special conditions and circumstances, which do not result from the action of the
applicant such as pre-existing conditions relative to the property, which are the subject of
this variance request?
The record evidence and testimony fi°om the public hear°ing reflects that the "Subject
property tivas originally platted in 1902, decades prior to existing zoning regulations. The
property ivas subsequently subdivided into its current, irregular shape. The applicant
purchased this property in 2022 and is not responsible for the current conditions of the
subject property. Additionally, the area adjacent to the north (side) property line is
unsuitable for construction. This area is very marshy and has been used as a dumping
ground over the yearsfor large concrete parking bumpers, other unidentifiable concrete
objects, and general trash and debris. This physical condition of the land prevents the
shifting of the proposed building closer to the north (side) property line. Photographs taken
by the applicant are included to shotiv the current physical conditions of this area of the
property,
3. Will a literal interpretation of the provisions of this zoning code work unnecessary and
undue hardship on the applicant or create practical difficulties for the applicant?
The record evidence and testimony from the public hearing r°effects that "A strict and liter°crl
interpretation of the relevant provisions of the zoning code 1-vould create cm undue hardship
on the applicant as the setbacks established in the zoning code for VR zoned properties
would effectively prohibit development on the subject property. Due to the highly irregular
shape of the subjectproperty, there are only three setbacks —front (east), rear (Vvest/south),
and side (north property line only). Subject property is sharply angled at the rear, i-vhich
causes the west/south property line to be considered the rear property line rather than the
side property line. This interpretation of setbacks increases the setback to 20 feet along the
hest/south property line, rather than S feet if the west/south property line were to be
considered a side yard. Additionally, as previously noted, the area of the property
immediately adjacent to the north (side) property line is unsuitable for• construction, and
1 The Hearing Examiner's findings are italicized.
Page 2 of 6
the proposed single family residence cannot be shifted closer to the north (side) property
line because of these conditions. "
4. Will the Variance, if granted, be the minimum Variance that will make possible the
reasonable use of the land, building or structure and which promote standards of health,
safety, and welfare?
The recor°d evidence and testimony f om the purblic hearing°ejlects that "The requested
variance is to reduce the required 20 foot rear yard setback by 11.2 feet to allow an 8.8-
foot rear yard setback. The proposed development of the property is to construct a 35 foot
by 50 foot, or 1, 750-square foot, single family residence near the center of the property.
The structure is proposed near the center of the property due to the unsuitable physical
conditions of the land adjacent to the north (side) property line and due to the sharp angle
of the west/south (rear) property line. Only a small corner of the proposed single family
residence encroaches into the required 20 foot rear yard setback due to the sharply angled
property line, as shown on the site plan/map of the survey. This variance is the minimum
mod f cation of the regulation at issue that will afford relief and allow the construction of
the single family residence cis proposed. The requested variance ivill have no negative
impacts on the health, safety, or ivelfare of the surrounding neighborhood as the requested
variance would shift the proposed residence toivards the center of the property, away f •om
the adjacent neighbor on the north. The adjacent property to the south/west is a historic
cemetery, and the proposed residence ia)ould have no negative impacts on the adjacent
property if placed in accordance ivith the requested variance if approved.. "
5. Will granting the Variance confer on the applicant any special privilege that is denied by
these zoning regulations to other lands, buildings, or structures in the same zoning district?
The record evidence and testimony from the public hearing reflects that by definition, a
variance bestuivs some dimensional relief from the zoning regudations specif c to a site.
LDC Section 9.04.02 allows relief through the variance process for any dimensional
development standard.. As such, other properties facing a similar hardship ivould be
entitled to make a similar request and would be conferred equal consideration on a case -
by -case basis.
6. Will granting the Variance be in harmony with the general intent and purpose of this Land
Development Code, and not be injurious to the neighborhood, or otherwise detrimental to
the public welfare?
The record evidence and testimony f •om the public hearing reflects that `7f the requested
variance is granted, the putrpose and intent of the zoning code will be maintained as all
other setbacks, zoning, and building code regulations will be satisfied The area of
encroachment is minor as only a portion of the proposed single family residence
encroaches into the required 20 foot rear yard setback, as shoivn on the site plan/rnap of
the survey. There is no evidence to suggest that the granting of the requested variance
tivould be detrimental to or• endanger the public health, safety, or general tivelfare, as the
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proposed development is a single family residence, consistent with the character of the
surrounding area and a permitted use in the VR zoning district. "
7. Are there natural conditions or physically induced conditions that ameliorate the goals and
objectives of the regulation such as natural preserves, lakes, golf courses, etc.?
The record evidence and testimony from the public hearing reflects that "The west/sout7�
(rear) propery) line of subject property abuts a historic cemetery. The requested reduction
of the rear yard setback would not affect the adjacent property cis there can be no
development on that parcel due to the parcel being used as a cemetery. The proposed
development plan maintains all other required setbacks. The proposed variance would
allow the placement of the proposed 1, 750-square foot single family residence near the
center of the property so as to avoid the land immediately adjacent to the north (side)
property line. The area adjacent to the north (side) property line is unsuitable for
construction, cis previously noted, due to the marshy qualify of the ground and the presence
of concrete debris and other items discarded on the subject property over the years. "
8. Wiil granting the Variance be consistent with the Growth Management Plan (GMP)?
The recor°d evidence and testimony.f°om the public hear•ir�g reflects that yes, approval of
this Variance will not affect or change the requirements of the GMP concerning density,
intensity, compatibility, access/connectivity, or any other applicable provisions.
GROWTH MANAGEMENT PLAN (GMP) CONSISTENCY.
The subject property is in the Village Residential (VR) Zoning District and the Urban Residential
Subdistrict designated area as identified in the Growth Management Plans (GMP) Future Land
Use Map (FLUM). The GMP does not address individual variance requests but deals with the
larger issue of the actual use. As previously noted, the subject petition seeks a variance for a
proposed principal residential structure with attached or detached accessory structures. This land
use category is designed to accommodate residential uses, including single-family. The proposed
single-family dwelling unit is consistent with the GMP.
ENVIRONMENTAL ADVISORY COUNCIL (EAC) RECOMMENDATION.
The EAC does not normally hear variance petitions. Since the subject Variance does not impact
any preserve area, the EAC did not hear this petition.
ANALYSIS.
Based on a review of the record including the Petition, application, exhibits, the County's staff
report, and hearing comments and testimony from the Petitioner and/or the Petitioner's
representative(s), County staff and any given by the public, the Hearing Examiner finds that there
is enough competent, substantial evidence as applied to the criteria set forth in Section 9.04.03 of
the Land Development Code to approve the Petition.
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DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-PL20230005243, filed by the
property owner/applicant David K Swift, with respect to the property legally described as Parcel
ID 26082280000, located in Chokoloskee on the west side of Smallwood Drive, approximately
150 feet south of Derriere Lane, in Section 36, Township 53 South, Range 29 East, Collier County,
Florida, for the following:
• A Variance request from Section 4.02.O1.A, Table 2.1, of the Collier County Land
Development Code to reduce the minimum rear yard setback for a proposed single-family
dwelling from 20 feet to 8.8 feet.
Said changes are fully described in the Zoning Map attached as Exhibit "A" and the Map of Survey
attached as Exhibit "B", and are subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A —Zoning Map
Exhibit B — Map of Survey
LEGAL DESCRIPTION.
The subject unaddressed property, Folio No. 26082280000, is located in Chokoloskee on the west
side of Smallwood Drive, approximately 150 feet south of Demere Lane, in Section 36, Township
53 South, Range 29 East, Collier County, Florida.
CONDITIONS.
• All other applicable state or federal permits must be obtained before commencement of the
development.
DISCLAIMER.
Pursuant to Section 125.022(5) F.S., issuance of a development permit by a county does not in any
way create any rights on the part of the applicant to obtain a permit from a state or federal agency
and does not create any liability on the part of the county for issuance of the permit if the applicant
fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or
undertakes actions that result in a violation of state or federal law.
APPEALS.
This decision becomes effective on the date it is rendered. An appeal of this decision shall be done
in accordance with applicable ordinances, codes and law.
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RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES
AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR
VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE
NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES,
August 7, 2024
Date
Andrew Dickman, Esq., AICP
Hearing Examiner
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LEGEND
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LEGH,L DESCRIPTIUid
A PARCEL OF LAND LYINO IN AFID BEING
PART OF ''ECTIOtI 36-53-29, COLLIER
COUNTY. FLORIfiA, AND OEINC MUF.E
PARTICULVJLY DESCRIDCD AS FOLLOWS:
PAFcCEL PER OR BOOK 5022
PACTS 1139, COLLIER COUNTY, F'L.
(PARCEL ID�26082280000}
COIAMENCINC AT THE NORTHCAST COP,HER OF TIIE
SOUTHEAST 1/4 OF THE NORTHEAST 1/4 OF
SECTICtI '6, TOYJF:SHIP 53 SOUTH, Rn?tGF ?9 EAST
CORNER[ OF OLOTT 6, SIAALLWOODS SUBDIVIS ON, rASR�I�T
RECORDED IN PLAT BOOK I, PAGE 27 OF THE PUBLIC
RECORDS OF COLLIER COUtJPf, fLORIUA; TIJENCE RUN
N 89' 31' 14' W FOR 50.00 FEEL, ALONG THE NORTH
LINE OF LOT 6 TO THC WEST RIGHT OF WAY LIRE OF
STATE ROAD 29 AtJD THE POINT OF BEGIIINING; THENCE
S 00' 1%' 14" V! fOR tU0.39 F€ET �LONO SAID RIGHT
OF WAY LINE; THEtICF. N 53' 48 06 IY FOR 24.85 FEET
ALUNC SAID RIGHT OF WAY LIIJE; THENCE 5 00' 12' 1�' W
28.44' ALONG S,VU RIGHT OF WAY UF1E; THENCE
N 89' 4T a6" W FGft 38.u5' TO THE eOUiH[AST CORNER
OF AN EXISTIIJC CEI.IETERY; iHEAlCE N 44' SD' 22 W FOR
I U1.88' ALONG itiE EASTF.P,LY LIIJE Ur' TtJE EXISTIFIO
TO THE tIORTH LINE OF LOT 6; 7HEFICE S 83' 31' 39' W
FOR 132.7T TO THE POINT OF BECiNNiP10.
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SURVEY PREPARED FOR:
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A SURVEY OF THE HEREON DESCRIBED LANDS YLlS
I,IAOE UIJDER MY DIRECTIOrt AIJO TO THE DEBT OF
!AY KNOWLEDGE AND BEUEf MESS THE STANDAP,DS
OF PRACTCE PER CHMTER 57-17 F.A.C., PURSUANT
TO SECTIOIJ 472.07.7 FLORIDA STATUTLS. rJ0 OTHER
PERSONS OR ENTITIES MAY RELY OIJ THIS SUKvEf.
FIU ABSTRACT WAS REVIEWED AND td0 TITLE OPINION
IS HEREBY EXPRESSED.
/ AICLVIN HATTOFJ, PSM.
FLORIDA REGIST2\TION 05109
NOT VALID WIT}IDUi THE SIGIJATURE AND EMBOSSED
SEAL OF TtIE FLORIDA LICF.PISED SURVEYOR MJD AIMPF.R
THIS CERTIFICATION IS ONLY FOR THE !ANDS
DESCRIBED HEREON. R IS NOT A CERtIFICANON
Of TITLE, ZONING OR FREEDOM OF ETJCUM9RMJCES.
ABSTRACT NOT FURBISHED AT TIME OF SURVEY.
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