HEX Minutes 08/22/2024 DraftAugust 22, 2024
Page 1
TRANSCRIPT OF THE MEETING OF THE
COLLIER COUNTY HEARING EXAMINER
Naples, Florida, August 22, 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 1:00 p.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
John Kelly, Planner III
Sean Sammon, Planner III
Ailyn Padron, Management Analyst I
August 22, 2024
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HEARING EXAMINER DICKMAN: Good afternoon,
everyone. Good afternoon. Thanks for accommodating the time
change. It's much needed. Thank you very much.
This is -- my name's Andrew Dickman. I'm the Hearing
Examiner for Collier County. This is the August 22nd, 2024,
Hearing Examiner meeting.
Let's all rise for the Pledge of Allegiance, please.
(The Pledge of Allegiance was recited in unison.)
HEARING EXAMINER DICKMAN: Okay. Thank you very
much.
Just for a quick introduction, as I said, my name's Andrew
Dickman. I'm an attorney. I've been practicing in the area of land
use and zoning for over 20 years. I'm a contracted attorney by the
Board of Commissioners. I'm not a county employee. I'm here to
be an impartial decision-maker for the items that are on the agenda
today. All of these are prescribed in the county's codes which things
come to me in my jurisdiction.
I will not be making any decisions here today, formal decisions
anyway. I have 30 days to do that. I'll try to do them as quickly as
possible.
The goal of this meeting, No. 1, is everyone to relax; enjoy
yourself. We'll get through this as expeditiously as possible, but it's
important that we give attention to each one of the items carefully.
Each one of the items on the agenda, what I'm looking for is
testimony from staff, from the applicant or the applicant's
representative, or from the public as to the criteria as it applies to that
particular item.
The criteria is established not only in the code but staff's -- staff
report -- county staff's staff's report will have that as well.
So if you could try to focus your -- whatever presentation you
have, although take your time, but try to focus it on evidence that
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would be useful for me to be able to make a decision when I go back
and look at everything.
I have read everything for all the items here today. I have not
had -- just for disclosure purposes, I have not had any prior
conversations with any applicant, applicant representative, no one
from the county. Again -- and I haven't done any other outside
research other than looking at all the materials that have been filed
for each application. So, again, I'm here strictly to be an impartial
decision-maker, knowing the law, knowing what the code says,
hearing the testimony.
As far as the procedure, as I said, we'll start with the county.
They'll give us their overview/introduction of the item, they'll give us
their recommendation, any conditions that they're recommending,
talk about any of the notices that were put out. I always want to
make sure that we get that on the record. Then we'll have the
applicant or the applicant's representative at that podium.
Am I going too fast?
THE COURT REPORTER: No.
HEARING EXAMINER DICKMAN: Okay -- at this podium,
and then we'll open it up for public comment.
I will reserve some time to allow the applicant or applicant's
representative to have time for rebuttal if necessary. Again, I want
everyone to relax. This is -- we're not in the chambers. We're
not -- this is -- the intent of this is for me to get the information that I
need in order to make a clear decision after the hearing.
It is a quasi-judicial hearing, however, and for those purposes, I
need to have anyone who is going to testify here today to be sworn
in. So for all items, anyone in the room that is going to testify, if
you would just please stand and raise your right hand, and I will ask
Madam Court Reporter to swear everyone in.
THE COURT REPORTER: Do you swear or affirm the
August 22, 2024
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testimony you will give will be the truth, the whole truth, and nothing
but the truth?
(The speakers were duly sworn and indicated in the affirmative.)
HEARING EXAMINER DICKMAN: All right. Thanks,
everybody.
Well -- and if anybody has phones on, turn them off. If you
want to have a conversation with whoever you're with, step outside in
the hallway so we can concentrate on what we're -- the item that
we're on. But with that, I think we can get started with item -- are
there any changes to the agenda? I see one, two, three, four, five
items. No changes?
MR. BELLOWS: For the record, Ray Bellows. No changes to
the agenda, and just a reminder the last two items are companions.
HEARING EXAMINER DICKMAN: Companion items.
Thank you very much. Okay. Thank you, Mr. Bellows.
Let's get started with 3A. Just so you-all know, I had my
cataract surgery, so I'm happy to be able to see everybody's beautiful
faces and the colors and everything, so thank you.
MR. SAMMON: Good afternoon, Mr. Dickman. For the
record, Sean Sammon, Planner III in the Zoning division.
Before you is Agenda Item 3A. This is a request for a
determination that the proposed use of a hybrid wholesale and retail
lumber and building material dealer is comparable in nature to other
permitted uses in the heavy commercial C-5 zoning district described
as lumber and other building materials dealers as SIC Code 5211.
The subject property is located at 4720 Radio Road, Naples,
Florida, 34104, also known as CMG Plat Lot 2 in Section 1,
Township 50 South, Range 25 East, Collier County, Florida.
The petition was reviewed by staff based upon review criteria
contained within LDC Section 10.02.06.K.2, a through e, and staff
believes this petition is consistent with the review criteria in the LDC
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as well as with the GMP.
With respect to the public notice requirements, they were
complied with as per LDC Section 10.03.06.O. The property owner
notification letter and newspaper advertisement were taken care of by
the county on Friday, August 22nd, 2024.
I've received no calls or other communication from the public
regarding this petition request, and there has been no public
opposition pertaining to this petition; therefore, staff recommends
that you determine that the proposed use of a hybrid wholesale and
retail lumber and building material dealer is comparable in nature to
other permitted uses in the heavy commercial C-5 zoning district
described as lumber and other building materials dealers with the
following two conditions:
First, the approval of this comparable-use determination is made
as -- made at this specific location, 4720 Radio Road Naples, Florida,
34104, and shall not be construed to mean the use is entitled in a
different location and, second, the operating hours will be as follows:
Monday through Friday from 6:00 a.m. to 4:30 p.m., Saturdays from
6:00 a.m. to 3:00 p.m., and closed on Sundays.
That concludes staff's summary.
HEARING EXAMINER DICKMAN: Thank you, Sean.
Appreciate that.
Mr. Lombardo, come on up. It's good to you.
THE COURT REPORTER: I didn't swear you in.
MR. LOMBARDO: Oh, okay. I figured as an attorney I
wasn't providing testimony, but I will do it.
THE COURT REPORTER: Do you swear or affirm the
testimony you will give will be the truth, the whole truth, and nothing
but the truth?
MR. LOMBARDO: Yes.
HEARING EXAMINER DICKMAN: You do make a good
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point. I always think the same thing, but go ahead. Everybody
likes --
MR. LOMBARDO: I wasn't planning on lying, so I think we'll
proceed as planned.
HEARING EXAMINER DICKMAN: For sure you can't lie,
though, now.
MR. LOMBARDO: Is there, by chance, a clicker or --
HEARING EXAMINER DICKMAN: No, you just say --
MR. LOMBARDO: This is going to be rough. I apologize.
HEARING EXAMINER DICKMAN: She's your clicker over
there.
MR. LOMBARDO: Okay. Sounds good. Next slide, please.
So for the record, Zach Lombardo here on behalf of Sandal Real
Estate Holdings, which is the applicant. That's the property owner.
The expected tenant is L&W Supply, and that's the use we're going to
be analyzing.
Next slide.
An aerial for staff's description. This is 4720 Radio Road.
Next slide.
As described by staff, and we agree, we would like to adopt
staff's recommendation with all conditions. The specific use we're
looking for here is a hybrid wholesale retail lumber and material
building dealer, and the reason why we're asking for this as opposed
to traveling under lumber and other building materials dealer is on
the next slide. This is the description from the SIC on this particular
property, and it describes this by saying that while these
establishments may sell primarily to construction contractors that are
known as retail in the trade, and L&W Supply is not known as retail
in the trade, so we are applying for this to make sure that we are
complying with the code as closely as possible.
Next slide.
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So the distinct piece here is because there are general public
consumers that can purchase from this use, it also does not fit into the
corresponding industrial category because it's not exclusively
wholesale, and so that's where we find that hole, because it's
not -- the comparable-use process can't be used to take a use from
one's own district and move it to another. It has to find something
that isn't present. And so what we're saying is we're not known as
retail in the trade, but we're also not exclusively a wholesale dealer.
Next slide.
This -- I don't know that we need to go into this level of detail
unless there's questions, so I'm going to skip to the next slide. And
skip to the next slide one more time. Here we are.
So the -- and one of the major-use cases that we put in the
application, and we've brought an L&W representative here to testify
about, is that in the hurricane-affected areas of the country -- L&W
has locations all over the country, but in these areas, there's an
especially increased usage of these facilities by the general public
because L&W is a major provider of drywall. And so after hurricane
events, there's a significant amount of general public consumption at
this property.
And so if it would be appropriate at this time, I'd like to call a
witness from L&W to provide some record testimony on this point.
Sir, if you'd come to the -- can we use this one?
THE WITNESS: This one?
HEARING EXAMINER DICKMAN: Why not.
MR. LOMBARDO: If you could state your name for the
record.
MR. MAHAFFEY: Sure. Tim Mahaffey.
MR. LOMBARDO: And your employer?
MR. MAHAFFEY: L&W Supply.
MR. LOMBARDO: And what is your role at L&W?
August 22, 2024
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MR. MAHAFFEY: I'm the vice president of the South Atlanta
region. I've been with the company for 38 years now, believe it or
not. The South Atlanta region is North Carolina, South Carolina,
Georgia, and Florida.
MR. LOMBARDO: And to confirm, you're here on behalf of
L&W as their corporate representative?
MR. MAHAFFEY: I am.
MR. LOMBARDO: Do you have knowledge of the plans for
the L&W Supply planned at 4720 Radio Road?
MR. MAHAFFEY: I sure do.
MR. LOMBARDO: What kind of products are going to be sold
at that site?
MR. MAHAFFEY: Primarily drywall, metal studs, plaster,
stucco, lumber, tools. We have all kinds of accessories; fasteners,
whatnot.
MR. LOMBARDO: As far as L&W's position in the market
here, is L&W known as retail in the trade?
MR. MAHAFFEY: We're not.
MR. LOMBARDO: And will this location sell to wholesale
buyers?
MR. MAHAFFEY: We will.
MR. LOMBARDO: Will it also sell to the general public?
MR. MAHAFFEY: Absolutely.
MR. LOMBARDO: Regarding the existing L&W locations in
areas impacted by hurricanes -- this is a long question. We're almost
there -- do those locations experience increased sales to the general
public after hurricane events?
MR. MAHAFFEY: It can be really crazy. Ian was an
example. I use Charley. We talked about that. When Charley hit
Punta Gorda, we lost half of our building, all of our roof, and the next
day, we had about 100 customers lined up looking for materials to fix
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their homes. We actually had to call the police to direct traffic. So
there's a huge, huge need for the general public right after a
hurricane. Actually, it can extend for months.
MR. LOMBARDO: And is it anticipated that this is going to
be true for this location?
MR. MAHAFFEY: Well, we would hope not, right? But yes.
MR. LOMBARDO: Sure. I guess that question was a bit
much.
I don't have any further questions for the witness. That's what I
wanted to put onto the record. Do you have any questions or does
staff?
HEARING EXAMINER DICKMAN: No. Although, I will
recognize you as an expert, so that was expert testimony. Thank
you.
MR. MAHAFFEY: Thank you.
HEARING EXAMINER DICKMAN: Are you finished?
Have you got more to go?
MR. LOMBARDO: I can be. There's -- there is an
unbelievable amount of slides here going through the factors, but
since staff agrees with our analysis of the factors, I don't want to
belabor the point, so...
HEARING EXAMINER DICKMAN: All right.
MR. LOMBARDO: But I also didn't want to deprive you of
these colorful slides, given you the cataract surgery.
HEARING EXAMINER DICKMAN: Well, let's take a few
minutes. I'm here. My eyes are working really good now.
MR. LOMBARDO: Next slide.
Staff has approved. And so if you could go to 11, yeah, next
slide.
Just for record purposes, one of the -- one of -- the first category
is looking at comparable operating hours of surrounding businesses.
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So the three listed here, Floor & Decor, Home Depot, and
Lowe's, these are all publicly traded companies that declare
themselves in this SIC code. And these are their operating hours for
the Collier County locations as posted. And as you can see here, by
going to the next slide, that proposed hours here are less intense.
We're closed Sundays. Typically, this location will close before
every other example location. And so it was our position that this
was less intense and -- next slide -- staff agrees with that.
For the next element, next slide. From a traffic volume
perspective, if -- when we looked at the ITE and what codes would
apply, it's essentially the same code. And I think this is where it's
important to note for the record that this is a very -- it's a very narrow
request in the sense because in many ways the impact of this is the
same as a lumber yard, which there's a currently existing lumber yard
on Radio Road.
In fact, if you go to the next slide, and then the one after that,
and then the one after that, and then the one after that -- there we
go -- the parking requirements are the exact same. So the type of
vehicles that go there and the requirements in the parking code and
the ITE analysis is essentially the same whether it were wholesale or
retail, and so hybrid is really the same end result. So from the first
requirements of making sure there's similar operating hours, there's
not a different traffic impact, there's similar vehicles, and there are
the same kind of parking, all these things, in our position, have been
met by this analysis.
Next slide.
And, again, staff has agreed with that analysis.
Next slide.
From a business practice standpoint, which is another piece of
this analysis -- and it's our position that the business practice
activities are essentially indistinguishable, and part of this can bee
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seen by looking at Home Depot. Home Depot has a wholesale
component to the store, but it's known as retail in the trade, and so it's
not subject to this kind of application. But the kind of vehicles that
go into Home Depot are the same kinds of vehicles, because we're
talking about contractors loading up before jobs early in the morning
and then going out to the site.
Next slide. Next slide.
I think this is important just to cover. One of the additional
pieces of the analysis is the effect it would have on neighboring
properties but specifically in relation to other permitted uses that are
already in the C-5 district. And here, this is C-5, so we have
automotive repair services. And, in fact, the property is sort of an L
shape, and in the top of the L is a tire store currently existing, and I
believe its operating hours actually run longer than what we're
proposing.
But you have crematories, hardware stores, hospitals, welding
repair. And so it was our position here that there's really no
distinguishing factor between doing something like this and what's
already permitted in the district.
Next slide.
And staff agreed with that analysis.
Next slide.
On the GMP piece, because we consider this to be essentially,
especially from a parking and traffic standpoint, identical to the
lumber yard. If that's consistent with the GMP, our position is this is
consistent with the GMP.
Next slide, and next slide again.
Similarly, for the compatibility analysis, lumber yards are
deemed consistent by already being in the LDC, so we feel, again,
that we're consistent in that process.
The only other additional criteria here is any other additional
August 22, 2024
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information as may be required by the County Manager. We weren't
made aware of any requirements for that. And so I will -- mainly so
that "next slide" doesn't have to keep being typed, I can stop there.
HEARING EXAMINER DICKMAN: Just real quickly, you
mentioned it is an L-shaped property. As far as, like, deliveries, so
your hours will start at 6, but will the deliveries of things be before
that? I don't know who wants to answer that.
I'm sorry. I should have probably asked you that question
already. I just want to talk about, like -- because, you know, I would
imagine you get deliveries via tractor trailer, right?
MR. MAHAFFEY: We do, but we wouldn't take them in the
middle of the night. We wait till opening hours.
HEARING EXAMINER DICKMAN: Okay. And you feel
like that's enough room to get in and out of the property there?
MR. MAHAFFEY: We do, yeah.
HEARING EXAMINER DICKMAN: Okay.
MR. LOMBARDO: And just for record clarity on that, there is
a Site Development Plan amendment that's working its way through.
So that --
HEARING EXAMINER DICKMAN: Yeah.
MR. LOMBARDO: There will be an analysis on the drive aisle
and the fire access and these sort of things.
HEARING EXAMINER DICKMAN: Well, it's appropriate on
Timber Lake Drive. I guess that's meant to be, right?
MR. LOMBARDO: That's exactly how we feel.
HEARING EXAMINER DICKMAN: Okay. That's all I
wanted to find out, so -- and as you said, there is a Site Development
Plan going through the administrative process?
MR. BOSI: Right.
MR. LOMBARDO: And it's an SDPI. I'm not sure -- I know
that Grady Minor is working through this. I don't know if we've
August 22, 2024
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filed or we're in review. I'm not sure where we are, but we
acknowledge that there will have to be one done.
HEARING EXAMINER DICKMAN: So they'll look at a lot of
the details of that?
MR. LOMBARDO: (Nods head.)
HEARING EXAMINER DICKMAN: All right. Anybody
signed up from the public to speak here tonight -- today?
MS. PADRON: We have no speakers for this petition.
HEARING EXAMINER DICKMAN: No speakers and
nothing to rebut, then.
Okay. This is pretty straightforward. I think I have enough
information. Thank you for being here. I'll get a decision out as
quickly as possible.
MR. LOMBARDO: Thank you very much.
MR. MAHAFFEY: Thank you.
HEARING EXAMINER DICKMAN: Thank you.
Nice job, thank you.
MR. SAMMON: Good afternoon, Mr. Dickman. For the
record, Sean Sammon, Planner III in the Zoning division.
Before you is Agenda Item 3B. It's for a variance, Project No.
PL20240000927. This is a request for a variance from the Land
Development Code Section 2.03.08.A.2.a.(4)(a)iii to reduce the
required agricultural Rural Fringe Mixed-Use Overlay Receiving
Lands side setback from 30 feet to 12.8 feet on the east property line
and to reduce the rear setback from 50 feet to 28.1 feet on the
northern property line for the two existing accessory storage
buildings on approximately 7.94 acres located at approximately
2,000 feet north of U.S. 41 and approximately 850 feet east of
Greenway Road at 2441 Maretee Drive, Naples, Florida, 34114, in
Section 7, Township 51 South, Range 27 East, Collier County,
Florida.
August 22, 2024
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The petition was reviewed by staff based upon review criteria
contained within LDC Section 9.04.03, A through H, and staff
believes this petition is consistent with the review criteria in the LDC
as well as with the GMP.
With respect to the public notice requirements, they were
complied with as per LDC Section 10.03.06.F. The agent letter was
distributed by the applicant on Monday, June 10th, 2024. The public
hearing signs were placed by the applicant on Thursday, August 1st,
2024, and then the property owner notification letter and newspaper
advertisement were taken care of by the county on Friday,
August 2nd, 2024.
I've received no calls or any other communication from the
public regarding this petition request, and there has been no public
opposition pertaining to this petition.
Therefore, staff recommends that you approve this variance
petition to reduce the required agricultural Rural Fringe Mixed-Use
Overlay Receiving Lands side setback from 30 feet to 12.8 feet on
the east property line and to reduce the rear setback from 50 feet to
28.1 feet on the northern property line for the two existing accessory
storage buildings for the subject property as depicted in Attachment
B to the staff report.
That concludes staff's summary.
HEARING EXAMINER DICKMAN: Thank you, Sean.
Appreciate it.
MR. SAMMON: You're welcome.
HEARING EXAMINER DICKMAN: Is the applicant or
applicant's representative here? Good afternoon.
MR. DuBOIS: Good afternoon. Thank you all for your time
today. My name is Richard DuBois. I'm here with RDA
Consulting Engineers also here on behalf of our client, Brightview
Landscaping to discuss this variance application with you today.
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Just a quick summary, that's the subject parcel there in the
center. It's just shy of an 8-acre parcel, and this property is currently
used as a landscape services headquarters local branch. So they
provide lawn care services, nursery services, things like that, out of
that location.
Next slide, please.
So a quick overview. We came in with this property for a Site
Improvement Plan application to permit some ADA improvements
that were being made and some service drive improvements that were
being made. During that process, we found that the two storage
buildings that are in the northeast corner of the parcel -- yep --
HEARING EXAMINER DICKMAN: These two right here?
MR. DuBOIS: Those two buildings right there, yep -- that they
did not meet current setback requirements for this agricultural
RFMUO receiving property. So with that being said, we then chose
to go through the process of requesting a variance in order to save
these two buildings.
Next slide, please.
So as you can see, they're older buildings. They've been there
for over 35 years for the best we've been able to find in our records of
the buildings that the property owner has. At the moment, the
county has not been able to obtain any records for these buildings.
Part of this process we understand and have agreed with staff that
after-the-fact building permits will be obtained if this variance is
approved. And they're in good working order. They're not in
disrepair. They've been used consistently throughout history. Our
client, Brightview Landscaping, purchased this property in late 2018.
And they inherited this issue, but they'd like to correct it and fix it.
Next slide.
So the variance that we're requesting to the north is for a
28.1-foot setback to be allowable instead of the 50-foot that's
August 22, 2024
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required per code, and then to the east for the other storage building.
It would be for a 12.8 setback instead of the required 30.
HEARING EXAMINER DICKMAN: So this one meets the
rear setback here; it's just the side?
MR. DuBOIS: That's correct.
HEARING EXAMINER DICKMAN: Okay.
MR. DuBOIS: And then the other one meets the side setback,
but it doesn't meet the rear.
HEARING EXAMINER DICKMAN: Okay.
MR. DuBOIS: So they're exist buildings. They've been there
quite some time, and that's what we're looking to request for the
variance.
Next slide.
So as you can see, these buildings have been here quite some
time. The furthest aerials we were able to obtain showed both
buildings in 1995. Again, our client wasn't aware of this when they
purchased the property, but they're here to try to correct it to the best
of their abilities while maintaining the buildings and being able to
keep them where they are.
One item that was found to be consistent with our report as well
as the staff’s report was that these are compliant consistent with the
goals of the GMP, and staff also has mentioned in their report that
they are recommending approval for this variance.
We don't anticipate any -- any negative impacts to the health,
safety, or wellness of adjacent neighbors. They've all been notified
via mailings about this, and none of them have reached out to us or to
staff.
And one thing I did want to note is that it would cause undue
hardship to our clients to have to try to move these buildings or try to
demolish them and rebuild new buildings.
Next slide, please.
August 22, 2024
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Just to quickly note, we are going through the SIP process, as I
mentioned, to permit the other improvements on site. Throughout
that, we were found to be mostly compliant with other sections of the
code. Anything that we found not to be compliant is what's
currently being addressed.
With that being said, we are improving the landscape buffers on
the north side of the property and the east side of the property to
bring them up to current code.
Next slide, please.
And with these buffers, we're required a 15-foot-wide Type B to
the north and a 5-foot-wide Type A to the east.
Most of the existing landscaping there -- as this has been used
historically as a nursery for many years, a lot of landscaping's in great
shape. There's some exotics that have moved in that will be
removed, but a lot of this area is nice, mature landscaping. We will
be adding some plant material in order to make sure these buffers are
up to code, but it's pretty -- pretty wooded back there already.
Next slide, please.
So that's a summary of our variance petition. Thank you for
your time today, and if you have any questions, I'm happy to answer
any questions you might have.
HEARING EXAMINER DICKMAN: Okay. All right.
I understand what's happening here. Even if I were to grant an
affirmative decision, you still have to go through the building permit
process, and this doesn't in any way guarantee that, I mean, because I
don't know what kind of construction these are -- how they're
constructed or --
MR. DuBOIS: Right.
HEARING EXAMINER DICKMAN: -- you know, so this is
no guarantee to that --
MR. DuBOIS: Understood completely.
August 22, 2024
Page 18
HEARING EXAMINER DICKMAN: -- I mean, because
they're going to require you to have engineering plans or whatever,
okay?
MR. DuBOIS: Understood completely.
Yeah, even if we get this approved today, we still need to go
through the building permit process for both of those buildings in
order to keep them, which our client has agreed to go through that
process in order to keep them.
HEARING EXAMINER DICKMAN: Okay. So I have a
question. So in the event that -- I mean, have you inspected the
buildings? Do you feel like they're in -- are they in good shape? I
mean, you wouldn't be --
MR. DuBOIS: They've got good bones. They're in good
condition. We anticipate being able to obtain building permits. It's
going to be a hurdle for the client, but we believe it will be possible.
HEARING EXAMINER DICKMAN: Okay. Because here's
what I'm thinking, so if these things are deemed to not be compliant
at all with Florida Building Code and they have to be demolished,
then I'm not sure -- then at that time you would need to rebuild
something new, and it would have to be in compliance with the
zoning code.
MR. DuBOIS: Absolutely. Anything new constructed would
be built within the setbacks, and we wouldn't need this variance. We
agree to that condition.
HEARING EXAMINER DICKMAN: You agree to that?
MR. DuBOIS: Yeah, absolutely.
HEARING EXAMINER DICKMAN: I just want to make sure.
From the outside, just those few pictures, they look like they're pretty
solid, and they've been there for a while, but you never know. Okay.
MR. DuBOIS: They appear to be maintained, and the goal is to
keep them.
August 22, 2024
Page 19
HEARING EXAMINER DICKMAN: Okay. Anybody sign
up from the public to speak?
MS. PADRON: We have no speakers.
HEARING EXAMINER DICKMAN: When was the last time
I had speakers? Couple months?
MR. BOSI: Two meetings ago.
HEARING EXAMINER DICKMAN: I don't know what's
going on here. I'm getting a little worried.
Okay. Anything else from county staff?
MR. BOSI: Mike Bosi, Planning and Zoning director.
Nothing from staff other than I think that between the applicant
and our staff planner, they reach out and coordinate with the
adjoining neighbors on all the issues, and we address those concerns
before they get to the hearing; therefore, it probably takes away from
your popularity, and we apologize.
HEARING EXAMINER DICKMAN: Okay. And you guys
are in agreement with the idea that, like, if for some reason these
structures are deemed not -- you know, it's not fiscally possible or
economically reasonable to have them in place and they have to come
down, that this is -- this decision would only apply to these buildings,
and anything new would have to be meet the setbacks, right?
MR. BOSI: Yes. Staff would agree with that. Looking at the
picture, there would be enough clear area within that area to
adjust -- to make the setbacks and still have the storage square
footage, I would think, if that was the ultimate goal and conclusion.
HEARING EXAMINER DICKMAN: Okay.
MR. SAMMON: For the record, Sean Sammon.
In our recommendation, it's for the existing accessory structures.
HEARING EXAMINER DICKMAN: Thank you. I
appreciate that.
Okay. I have no other questions. Do you have anything else
August 22, 2024
Page 20
you want to --
MR. DuBOIS: No, I'm all set. Thank you all for your time.
HEARING EXAMINER DICKMAN: Nice presentation.
Thank you.
All right. I was really hoping the 1:00 would improve my
ratings. I guess not.
Hi, John.
All right. This is 3C.
MR. KELLY: Good afternoon, Mr. Dickman. For the record,
John Kelly, Planner III with the county.
There are two corrections to the staff report for this project,
which is Agenda Item 3C. Boat Dock BD-PL20230017548. The
first correction is that Primary Criteria No. 2 should have been noted
as "satisfied" or "met," not "not met." So I'm reading that into the
record at this time.
And the second item is Attachment A provides the wrong
document. It should have been the plans that were just distributed to
you, so that is a correction to Attachment A, and I will e-mail your
office with the file for the purposes of rendering your decision.
HEARING EXAMINER DICKMAN: Okay. Just to be clear,
Primary Criteria 2 is met, not "not met."
MR. KELLY: Correct.
HEARING EXAMINER DICKMAN: It seems to be a tongue
twister. Okay, got it. And these are the revised plans. Got it.
MR. KELLY: Correct.
Okay. With that, the petitioner requests the Hearing Examiner
approve a 20-foot boat dock extension over the maximum permitted
protrusion of 20 feet for waterways greater than 100 feet in width to
allow the construction of a boat dock facility protruding a total of
49 feet into a waterway that is 278 feet wide pursuant to LDC
Section 5.03.06.E.1 for the benefit of the subject property which is
August 22, 2024
Page 21
located at 156 Pago Pago Drive West, also known as Lot 187, Isles of
Capri, No. 2, in Section 32, Township 51 South, Range 26 East,
unincorporated Collier County, Florida.
It's located within a Residential Single-Family 4, RSF-4, zoning
district. The subject property comprises 0.18 acres and supports a
single-family dwelling adjacent to Snook Bay.
The petitioner desires to remove the existing dock and
boathouse to then construct a new residential dock facility with two
slips each with a boatlift to accommodate a 45-foot vessel and a
28-foot vessel.
Said property has an existing concrete seawall with
approximately 70 feet of water frontage. As the property line is
landward of the seawall, it is the most restrictive point for measuring
protrusion.
The new dock facility will protrude 49 feet into the
278-foot-wide waterway, and the required 15-foot side riparian
setbacks will be respected on both sides of the new dock facility.
As far as public notice, they were taken care of within the
confines of LDC Section 10.03.06.H. The property owner
notification letter and newspaper ad were taken care of by the county
on August 2, 2024, and a public hearing sign was posted by me on
August 6th, 2024.
This petition was reviewed by staff based upon the review
criteria contained within LDC Section 5.03.06.H. Of the primary
criteria, it satisfies five of five. Of the secondary criteria, it satisfies
four of six with the sixth being not applicable -- it's the Manatee
Protection Plan -- and has been found to be consistent with the
Growth Management Plan and the LDC.
No public comment has been received in response to advertising
of the subject petition, and staff recommends you approve this
petition as described in accordance with the proposed dock and
August 22, 2024
Page 22
boathouse plans provided within Attachment A.
And that concludes staff's presentation.
HEARING EXAMINER DICKMAN: Thank you, John.
Appreciate that.
Mr. Rogers, how are you today?
MR. ROGERS: Pretty good. Thank you. How are you, sir?
HEARING EXAMINER DICKMAN: Doing great.
MR. ROGERS: All right. Well, for the record, Jeff Rogers
with Turrell, Hall & Associates here today representing the applicant,
who is listed as the land ownership South Bend [sic], LLC. Mike
Vangessel is his last name -- is the owner, and he is my client.
So he moved into this house probably about two years ago and
built a home and has proposed to rebuild the existing docking facility
first removing the boathouse and existing dock that is located on site.
Jump ahead. Moving forward.
I've got a few pictures here for you of the existing site
conditions. Obviously, the new home is built up looking down onto
the dock and the associated boathouse. There is currently only one
boat slip on site.
Moving forward.
Some more detailed pics for you. I know you like seeing the
pictures of the existing site conditions. So currently the dock does
meet most of the rules for docking facilities per today; however, it is
considered a grandfathered structure being built prior to the 1990
Collier County boat dock extension rules grandfather date as well.
So we could technically rebuild and replace this existing docking
facility as it exists today.
Moving forward.
Survey. We always get the survey, as you know, before we do
anything here in regards to developing a new dock design giving us
site conditions as well as existing waterway on-site conditions in
August 22, 2024
Page 23
regards to width of waterway, linear footage of shoreline, things of
that nature that are pertinent for designing a new docking facility.
Moving forward.
Also included in that are the water depths associated, which are
required for not just Collier County permitting but also the state and
federal permitting process. The depths that we do get on these
surveys are referenced to mean low water, so these are the depths that
you get on an average low tide on site.
I'm not sure the county requires them that way, but the DEP, the
state agency, does and gives us a realistic idea of design criteria to
shoot for with the dock.
Moving forward, start -- just touch on -- that's an aerial view of
the existing conditions, just for reference.
Keep moving forward, if you would, please. Again, one more.
Moving into the proposed dock, as staff -- John has outlined for
you, the applicant is requesting -- proposing to protrude 49 feet into
the subject waterway, so we are requesting a 29-foot boat dock
extension from the allowed 20 feet to safely moor their current boat
that they're storing at a marina, which is a 45-foot vessel, on site on a
boatlift as well as a smaller boat that they do have, which you did see
in the existing site conditions pictures onto a platform lift on the other
side.
HEARING EXAMINER DICKMAN: But that would be -- the
current location is where --
MR. ROGERS: Correct.
HEARING EXAMINER DICKMAN: -- the decking is now.
Like, basically that's a deck, right?
MR. ROGERS: Yes, sir. Yeah. That was a fixed dock that
you saw. Yeah, 100 percent.
HEARING EXAMINER DICKMAN: Gotcha. So that's
currently a deck. This is a boathouse currently, right?
August 22, 2024
Page 24
MR. ROGERS: Yes, sir. Correct.
HEARING EXAMINER DICKMAN: Quick question. If I'm
on either side of the property, what would you think the height, the
top of the boat -- the current existing boathouse is?
MR. ROGERS: It's lower -- the county requirement is 15 feet
from the top of deck to the crown of the roof. I don't have that exact
dimension, but to me, in that picture, I believe it's more like 10 to
12-foot. It's a lot -- it's an older -- very older style boathouse --
HEARING EXAMINER DICKMAN: Okay.
MR. ROGERS: -- back in the day when vessels used to be
average size. As you know, they've grown over the years --
HEARING EXAMINER DICKMAN: Uh-huh.
MR. ROGERS: -- which puts me in front of you quite often.
HEARING EXAMINER DICKMAN: Yeah.
MR. ROGERS: So that's basic -- you know, real quick, also,
we do meet side-yard setbacks. The decking has been minimized to
the fullest extent possible. So those are the important things that we
take into consideration when designing this as well as the overall
protrusion out into the waterway. It is a relatively wide waterway,
which I'd like to move forward on a couple aerials before I hit the
criteria just to give you an overview.
Keep going, if you would, please. I've got a couple zoomed
out. There's a cross-section.
HEARING EXAMINER DICKMAN: This is the one that I
wanted to --
MR. ROGERS: Okay.
HEARING EXAMINER DICKMAN: So the reason I was
asking about this is if I'm a neighboring property owner and I'm
looking at this, I'm kind of looking right now at a big boathouse,
right?
MR. ROGERS: Basically, yeah.
August 22, 2024
Page 25
HEARING EXAMINER DICKMAN: The roof and then -- I
mean, obviously, when it's up on a lift, it's going to be higher, right?
Like, this is going to be -- this is showing the vessel at water level,
right?
MR. ROGERS: And that's the way county staff wants me to
show it on these cross-sections.
HEARING EXAMINER DICKMAN: No, that's okay. I
understand.
MR. ROGERS: But I totally agree; it would be able to come up
higher. And especially during storm events, they would get it up as
high as they possibly can. However, typically the bottom of the
boat, I would say, hangs down about a foot below the deck area --
HEARING EXAMINER DICKMAN: Right here?
MR. ROGERS: -- typically. Yes, sir.
HEARING EXAMINER DICKMAN: So then --
MR. ROGERS: You're going up another four feet, three feet.
HEARING EXAMINER DICKMAN: All right. Thank you.
MR. ROGERS: Which is, in my opinion, consistent, kind of,
with the requirement of a 15-foot boathouse today for an average
vessel.
Jumping to the criteria really quickly, the Primary Criteria
No. 1, whether the number of dock facilities and/or boat slips
proposed is appropriate in relation to the waterfront length location,
upland land use, and zoning. This is a residential single-family lot
and is allowed two boat -- two boat slips. And as proposed, we do
meet that criteria as outlined in the staff report.
Number 2 is the one that John brought up. That was a
correction, and that pertains to whether the water depth at the
proposed site is so shallow that a vessel of the general length, type,
and draft as that described in the petitioner's application is unable to
moor -- launch or moor at mean low tide.
August 22, 2024
Page 26
And this image doesn't really paint that picture for you, but if
you look at the water depths on site, they are shallower closer to
shoreline, which is typical. We did not propose to dredge in this
case to make a little bit of a deeper waterfront, but with the vessel
size and the restraints of setbacks and, you know, size of vessel, in
this case, there was really no other option but to protrude out past the
20 feet, even looking at a more shore-parallel-style mooring, which
we did consider, and we kind of stuck with what was common
practice on this waterway, and previously, you know, been presented
before the county for approval on boat dock extensions. Not that
that matters, but this is kind of consistent with what's happened out
there before.
HEARING EXAMINER DICKMAN: Right. So if I'm
looking at -- I'm looking at what John handed out, the new exhibits --
MR. ROGERS: Yes, sir.
HEARING EXAMINER DICKMAN: -- on the cross-section
of this --
MR. ROGERS: Could you go back?
HEARING EXAMINER DICKMAN: Yeah, if you want to go
back. I mean, I think these are the water depths, right?
MR. ROGERS: Yes, sir.
HEARING EXAMINER DICKMAN: The numbers that are in
each pile, so it's -- each one -- the very -- the furthest-out pile is
negative 5.5 --
MR. ROGERS: Correct.
HEARING EXAMINER DICKMAN: -- NAVD; is that right?
MR. ROGERS: Yep. No, that's not -- it's mean low water.
HEARING EXAMINER DICKMAN: Mean low water.
Sorry. I apologize.
MR. ROGERS: No, you're good. So I just want to clarify that.
It's not NAVD.
August 22, 2024
Page 27
HEARING EXAMINER DICKMAN: At low tide. The
median of lowest tide?
MR. ROGERS: Correct.
HEARING EXAMINER DICKMAN: Gotcha. Is that over,
what, 19 years, something like that?
MR. ROGERS: Honestly, I'm not sure how it is over a course
of time. I think it's a 10-year period. So it's a reference point that
the surveyors, we -- the state provides the mean low tide elevation for
areas, and then you just deduct it off of the common elevation that the
surveyor shoots.
HEARING EXAMINER DICKMAN: So if at 20 feet you're
saying -- let's say 20 feet, you're talking about maybe four and a half
feet at mean low tide, that's just -- you're saying that for a vessel like
this, that your testimony is that it's -- there is a shallow-water issue.
MR. ROGERS: Yeah, correct. The size of vessel, I would
say, draft's a solid three foot just to float.
HEARING EXAMINER DICKMAN: Just to float.
MR. ROGERS: And then you put a -- put it onto a cradle
system, which is I beams supporting the boat, that's another 10 to
12 inches. So you need a solid four, maybe at most four and a half
feet to even float this vessel.
HEARING EXAMINER DICKMAN: Right.
MR. ROGERS: So getting the deepest part of the vessel out
into the deepest part of the bay is, you know, ideal for, you know,
safe ingress/egress at all tides, basically, onto the -- onto the lift.
HEARING EXAMINER DICKMAN: Gotcha. Thank you.
MR. ROGERS: Number 3 of the primary, whether the
proposed dock facility may have an adverse impact on navigation
within an adjacent marked or unmarked channel. This is a -- this
whole entire bay is open for navigation between subject docks on the
waterway. There is no marked channel on it. So -- and based on
August 22, 2024
Page 28
the width of the waterway, you know, we're -- there's no expectations
of any navigational issues on this waterway.
Number 4, whether the proposed dock facility protrudes no more
than 25 percent of the width of the waterway and whether a minimum
of 50 percent of the waterway width between dock facilities on either
side is maintained.
And the answer to that is yes. The waterway's approximately
278 feet wide from mean high to mean high. So with that, you
know, math, we're about 18 percent. So we're well -- well, we're
within the allowable 25 percent width of the waterway.
And just as a sidenote, we do have state and federal permits for
this, and that's part of their review criteria, and that's a
little -- scrutinized pretty heavily by them as well.
Number 5 of the primary, whether the proposed location and
design of the dock facility is such that the facility would not interfere
with the use of neighboring docks. That's --
HEARING EXAMINER DICKMAN: Yeah. So you know
this is always something that I like to talk about.
MR. ROGERS: Yeah, 100 percent.
HEARING EXAMINER DICKMAN: Because the other ones,
some of them are just mathematical formulas, so those are
self-evidence. So here you're pulling straight in. I can see that the
neighbor here already has a facility that's -- it looks like a boathouse,
right?
MR. ROGERS: Yes, sir.
HEARING EXAMINER DICKMAN: And then what's going
on on this one?
MR. ROGERS: That's just an old existing -- it terminates at the
20-foot mark. It's an old existing dock that's been there.
HEARING EXAMINER DICKMAN: Okay.
MR. ROGERS: Just a full picture, the applicant did just
August 22, 2024
Page 29
purchase that house.
HEARING EXAMINER DICKMAN: Okay.
MR. ROGERS: So, you know, I don't know what his plans are
there, but he -- it's an old existing dock that does protrude out, so...
HEARING EXAMINER DICKMAN: Okay. But the idea
would just be pulling straight in. The smaller boat is on a float lift;
is that what that is?
MR. ROGERS: It's a plat platform.
HEARING EXAMINER DICKMAN: Platform.
MR. ROGERS: Just imagine a section of your dock lowers
down, and so you can get around the whole thing. It's a cleaning
and -- you know.
HEARING EXAMINER DICKMAN: Gotcha, okay. And
you're within the riparian setbacks?
MR. ROGERS: Correct. Yep.
HEARING EXAMINER DICKMAN: And so let me ask you
about this. So over here, what's going to happen over here?
MR. ROGERS: That's technically the setback area. So --
HEARING EXAMINER DICKMAN: Any mooring going to
happen over there?
MR. ROGERS: I mean --
HEARING EXAMINER DICKMAN: Temporary, but not
permanent.
MR. ROGERS: Yeah. I was going to say, you technically are
allowed to do some temporary mooring in there, but nothing
permanent nor anything structural can go inside the setback.
HEARING EXAMINER DICKMAN: You understand that
there's two slips here and that's it for single-family homes, right?
MR. ROGERS: Correct.
HEARING EXAMINER DICKMAN: Okay, good.
MR. ROGERS: Yes, sir, yep.
August 22, 2024
Page 30
And in certain cases, handrailing is even required to prevent
mooring, you know, but there's ways around that, too. But --
HEARING EXAMINER DICKMAN: Yeah. I think
this -- yeah, the state sometimes requires that. I've only required it a
couple times.
MR. ROGERS: Okay.
HEARING EXAMINER DICKMAN: But I think you
understand, like, there wouldn't be any piles put out here or here to
make that a permanent, you know, after-the-fact kind of stuff.
MR. ROGERS: No, sir.
HEARING EXAMINER DICKMAN: That would be --
MR. ROGERS: That would technically not be compliant and
would not be permittable under a building permit, and if it was done,
it would be done illegally.
HEARING EXAMINER DICKMAN: Gotcha okay.
MR. ROGERS: But nothing proposed.
HEARING EXAMINER DICKMAN: And just for the record,
like, I don't think this is in my jurisdiction.
MR. ROGERS: No. I just like to show --
HEARING EXAMINER DICKMAN: You're just showing me
that?
MR. ROGERS: -- this because when the contractor goes in for
a building permit, if the Building Department -- if it's not
straightforward and totally match exactly what the boat dock exhibits
show, they will ask questions --
HEARING EXAMINER DICKMAN: Right.
MR. ROGERS: -- and say, you know, even though it doesn't
protrude out over the water, I've had --
HEARING EXAMINER DICKMAN: Right.
MR. ROGERS: -- experiences where I've had to clarify that
with the Building Department.
August 22, 2024
Page 31
HEARING EXAMINER DICKMAN: Yeah. I just want to
make it clear, because there is a criteria about overdecking and things
like that, and that has nothing -- that's not even over water, so I'm not
going to look at that.
MR. ROGERS: That's why I hatched it, too. It's really there,
but don't -- it's not really part of this petition request. It's technically
over the seawall and over the land.
HEARING EXAMINER DICKMAN: Okay.
MR. ROGERS: Moving forward. I'll try to pick this up.
Secondary Criteria No. 1, whether there are special conditions
not involving water depth related to the subject property or waterway
which justify the proposed dimension and location of the proposed
docking facility. You know, in every project, there's at least one
special condition outside of water depths, and in this case, you know,
it's the length of shoreline trying to fit the vessel -- the proposed
vessel. It is a large vessel, but, you know, coming up with a design
that would, you know, ultimately --
HEARING EXAMINER DICKMAN: So if it was -- honestly,
if it were parallel to the shore, what --
MR. ROGERS: That's all you're going to end up getting. You
would protrude out further, because we would have to put it on an
angle of some sort, a 45, 30-degree angle to --
HEARING EXAMINER DICKMAN: And then they would
have to come through here --
MR. ROGERS: Correct.
HEARING EXAMINER DICKMAN: -- or through here.
MR. ROGERS: And you're passing over shared riparian lines.
And we try to avoid -- we try to keep all ingress and structures within
our riparian area as -- you know, just to avoid any conflicts of your
neighbor backing out. You know, just any potential future docks
your neighbor might do. Just, if we have an open field, so to speak,
August 22, 2024
Page 32
to play with, we try to keep it inside the box.
HEARING EXAMINER DICKMAN: Okay. Thank you.
MR. ROGERS: Number 2 of the secondary, whether the
proposed dock facility would allow reasonable safe access to the
vessel for loading, unloading, and routine maintenance without
excessive decking. The answer to this is yes. There is a
4-foot-wide walkway proposed on the outside and then a 6-foot-wide
down the middle, so to speak, of the two lifts.
We made the middle one a little bit wider because it is providing
access to both boats and does give more deck area for recreational
access to the water, you know, launching kayaks and/or fishing off of
the dock. It does provide some service area for those activities
without being excessive.
Number 3, for single-family dock facilities, whether the length
of the vessel or vessels in combination described by the petitioner
exceeds 50 percent of the subject property's linear footage. This is
the one criteria of the secondary that we do not meet mathematically
with the vessels proposed. We're well over the 50 percent length of
shoreline. The shoreline is 70 feet -- 70 feet, yes, that's correct, and
combined vessel length is 73. So we -- there's no way we meet that.
HEARING EXAMINER DICKMAN: Yeah. And to me, like,
this is -- if the county ever -- from a policy point of view the
higher-ups wanted to look at things because of this, like -- you know,
this trend towards larger vessels, I mean, this could be one of the sort
of nonarbitrary criteria that they could set, you know, because the
combined -- I mean, what you have as far as shoreline compared to
the two boats, I mean, it's mathematically -- it's just --
MR. ROGERS: It's not there.
HEARING EXAMINER DICKMAN: Yeah.
MR. ROGERS: Usually when I stand in front of you doing
this, this is one that we commonly miss.
August 22, 2024
Page 33
HEARING EXAMINER DICKMAN: Yeah. The vessels are
getting bigger.
MR. ROGERS: Right. Right. Yes, sir.
So No. 4, whether the proposed facility would have a major
impact on the waterfront view of neighboring properties. We
touched on this. You know, there's an existing boathouse, you
know, so the view into the waterway is already elevated on the
subject property, and we are eliminating the boathouse. But we are
technically replacing that with a vessel that will be up in the air, so to
speak, when it's on the boatlift. So it should not be really much of a
change in regards to obstruction of anybody's view, plus the neighbor
has a boathouse -- you know, the neighbor to our west has a
boathouse, too, technically. It looks to be like a potential
grandfathered structure, too. It doesn't look like it really meets the
15-foot setback, just looking at it. I'm not 100 percent sure on that,
but -- so the view is tight through those two -- the shared riparian line
as it is right now.
Number 5 is pertaining to seagrasses being within 200 feet of
the proposed docking facility. I do not have a picture of myself
swimming like you like to see occasionally, but --
HEARING EXAMINER DICKMAN: I don't believe it.
MR. ROGERS: I have started taking pictures of myself in the
water, and my staff look at me like, "Why you taking a selfie of
yourself?"
And I'm like, "There's a reason. There is a reason." So you'll
see one. Not on this one, but they're coming.
HEARING EXAMINER DICKMAN: I want to see you out
there with your pole and surveying things.
MR. ROGERS: So this one there is not. We dove it. I've
dove this one actually three or four times, and there was no observed
seagrasses at all from here.
August 22, 2024
Page 34
Number 6 pertains to the Manatee Protection Plan, and it's not
applicable here due to it being a residential single-family zoned
property, the MPP doesn't -- allows for two vessels, and that's
basically it.
HEARING EXAMINER DICKMAN: Okay.
MR. ROGERS: With that being said, that concludes it. Happy
to answer any questions. And I'd like to request approval based on --
HEARING EXAMINER DICKMAN: Okay. Let me ask the
county staff, anything he said contradicts anything, or is it all in line
with what you've been hearing all along?
MR. JOHN: It's all good with --
HEARING EXAMINER DICKMAN: Everything you're
hearing?
MR. KELLY: Correct. And just to add, swim softly and carry
a selfie stick.
HEARING EXAMINER DICKMAN: Any public speakers?
MS. PADRON: We have none.
HEARING EXAMINER DICKMAN: I figured.
All right. Thank you very much. I'll get a decision out as
quickly as I can.
MR. ROGERS: Thank you.
HEARING EXAMINER DICKMAN: Thank you.
Do you guys really think that he's swimming out there? I don't
think he does. I really don't.
Okay. So D and E are companion items, right?
MR. KELLY: Correct.
HEARING EXAMINER DICKMAN: So we're going to have
one presentation, but I have to make two decisions, right?
MR. KELLY: Correct.
HEARING EXAMINER DICKMAN: So that's the way it's
going to work. Okay.
August 22, 2024
Page 35
MR. KELLY: Okay. Before you is Agenda Item 3D, as in
David, is NUA-PL20240006168. I will add, for the record, John
Keller, Planner III, for the county. And Agenda Item 3E is
BD-PL20220005339.
The petitioner requests the Hearing Examiner approve both a
nonconforming-use alteration per Section 9.03.03.B.2.A of the
Collier County Land Development Code resulting in a 0-foot setback
along the southeast side riparian line and a 5-foot setback along the
northwest side riparian line instead of the required side riparian
setback of 15 feet as provided for in LDC Section 5.03.06.E.5, for
dock facilities on lots with water frontage of 60 feet or greater and for
a 51-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 44 slips
protruding up to 71 feet into a waterway that is 748 plus-or-minus
feet wide to the north and a canal that is 100 plus-or-minus feet wide
to the east.
The subject property comprises 1.3 acres located at 271 South
Bay Drive within Barefoot Pelican, a waterfront condominium, in
Section 29, Township 48 South, Range 25 East, unincorporated
Collier County, Florida. The location is within a commercial
intermediate C-3 zoning district which makes for the nonconforming
use.
Public notice requirements for the NUA were as per LDC
Section 10.03.06.V, as in Victor, and boat dock extensions were as
per Section 10.03.06.H.2. The property owner notification letter and
newspaper ad were satisfied by the county on August 2, 2024, and the
public hearing sign was posted by the applicant's agent on or about
August 7, 2024, as per the affidavit, which is attached.
The NUA application was reviewed by staff based upon the
review criteria contained within LDC Section 9.03.03.B, as in boy,
August 22, 2024
Page 36
.5, a through f with findings stated within the staff report.
The boat dock extension was reviewed based upon the review
criteria contained within LDC Section 5.03.06.H.
Of the primary criteria, it satisfies four of five. Of the
secondary criteria, it satisfies five of six of the criteria, with Criterion
No. 3 being not applicable, and has been found to be consistent with
both the Growth Management Plan and the Land Development Code.
A Site Development Plan insubstantial plan is required for work
to proceed and will ensure compliance with the land development.
I have been contacted by three individuals on this project, two
requested details and who were provided additional information that
included information as how to provide objections and how to attend
the meeting both live and via Zoom. No letters of objection have
been received.
It's staff's recommendation the Hearing Examiner approve the
nonconforming-use alteration in accordance with the proposed plans
contained within Attachments B, C, and D subject to the approval of
the companion boat dock petition. Should the boat dock not be
approved, approval of the nonconforming-use alteration will only
allow for the depicted seawall and pool and spa improvements.
Staff also recommends approval of the companion boat dock
extension in accordance with the proposed plans contained within
Attachment A subject to the following conditions: One, that
approval is predicated upon the approval of the companion
nonconforming-use alteration. Absent such approval, the boat dock
extension is void and, two, the dock is private in nature and shall not
be used for rental or commercial purposes.
That concludes staff's presentation.
HEARING EXAMINER DICKMAN: Thank you. Thank
you, John.
Is the applicant's representative here? Good afternoon.
August 22, 2024
Page 37
MS. BERKEY: Good afternoon, everyone.
For the record, Katie Berkey, Becker & Poliakoff, land-use
attorney for the applicant, Barefoot Pelican Condominium
Association, Inc., with respect to both the NUA and BDE that
Mr. Kelly graciously summarized.
And with me today, I have two experts from Turrell, Hall &
Associates, Jeff Rogers, who you're familiar with from the prior
agenda item, and also Tim Hall, principal and senior ecologist. And
if I may, I'd like to first submit their résumés into the record and also
provide a hard copy of our PowerPoint.
HEARING EXAMINER DICKMAN: Thank you.
MS. BERKEY: And with that, I'll turn it over to Mr. Rogers.
HEARING EXAMINER DICKMAN: Thank you.
MR. ROGERS: Good afternoon. For the record, Jeff Rogers
with Turrell Hall & Associates, as you know and was just introduced.
I want to -- before I jump into the --
HEARING EXAMINER DICKMAN: I will recognize you as
an expert.
MR. ROGERS: Thank you. Thank you. I appreciate that. I
wasn't sure if I'd ever been at this point. It's crazy. I've been with
Turrell for 18 years now doing these things. Time flies.
HEARING EXAMINER DICKMAN: It's about time you
become an expert.
MR. ROGERS: Yeah.
This one I want to run through a brief little history just for you.
So the place was damaged, ultimately, during Hurricane Ian.
Obviously, this area was hit very hard, as well as Turrell's been
working with the condo for years with them to develop a marina
redevelopment plan as well as monitoring their seawall for movement
because it's time to replace it.
So part of this project originally started -- let's move forward on
August 22, 2024
Page 38
the slides. I do have some on-site photos for you.
Next one.
This is just a little overview. I can come back to this one, but
let's go forward one more.
So this is the existing shoreline, and it, over the years, has been
kind of Band-Aided and kept alive. The docking facilities are aged
and extremely old, and then boatlifts were added to each slip, you
know -- not each, not every slip, but occasionally slips -- boatlifts
were added to slips individually. The docking facility's not
modernized to today's standards.
And then Hurricane Ian came along and basically caused
significant damage not to just the shoreline but as well to the uplands.
And part of this petition request is to bring some of those
nonconforming current uses, basically, into compliance, mostly
consisting of the swimming pool area.
HEARING EXAMINER DICKMAN: Okay. Just real quickly
about the seawall. It looks pretty low to me. Are they going to be
replacing the seawall?
MR. ROGERS: Yes.
HEARING EXAMINER DICKMAN: Okay.
MR. ROGERS: So the overall plan is to basically raise the
seawall up.
HEARING EXAMINER DICKMAN: Good.
MR. ROGERS: Collier County does not limit the height. But
typical elevations are about 4.8, you know, 5 foot-ish, somewhere
around there, and I believe we're going up to a 4.8. So some of those
step-downs that you see in the top left corner photo down to the
docks -- we really dislike having stairs leading down to docks when
you're carrying stuff to your boat. Tripping hazards, right?
So we are going to eliminate, I believe -- not all of them, but I
believe we're eliminating two of those by elevating the seawall up,
August 22, 2024
Page 39
so -- which would, in turn, ultimately raise the docks, too.
HEARING EXAMINER DICKMAN: I agree.
MR. ROGERS: So that is one of the most important factors of
this project. That has to happen and -- because it's holding,
obviously, everything up, including their parking lot, which is the
pavers that you see, you know, right here. That's part of their
parking lot.
So moving forward one more slide. Give you a -- here's
the -- here's the overlay pertaining to the NUA. The NUA request is
basically to bring this swimming pool and spa area into -- you know,
get it correctly stated on the record with setbacks. We do not meet
the required setbacks for the pool, which -- let me just get to the slide.
So, basically -- yeah. So we're just basically trying to bring that
into compliance for the NUA and showing you what the setbacks will
be, and, obviously, with the proposed being in light blue, the gray
hatched area is the existing pool.
Come to find out to the residents, probably most of their
unknown knowledge, during Hurricane Ian the pool lifted, and we
found out it's not pile-supported. Never was. So it allowed it to
technically pop out of the ground with the water levels.
So that, obviously, is, you know, not the way things are done
today, and that is a significant hardship on the owners and
development to get that repaired and fixed, which is, you know, also
just landward of the seawall, which also is failing, especially out here
on the point. It's time to do this. It was probably time to do this
before, but Ian definitely brought it to the top.
So they have been dealing -- the property -- a lot of this property
had some issues because of the age of the property and land use
versus the zoning. So we worked with staff here, Katie and myself
and the residents, over a long period of time to figure out the right
path forward to ultimately get the marina and the uplands brought
August 22, 2024
Page 40
into -- caught up with the county records and bring everything
into -- you know, into compliance, so to speak.
So, you know, basically, the pool is driving the NUA as well as
the side-yard setbacks. They are existing. The docking facility is
fully permitted with the state and federal government; has been for
years. They do have a submerged land lease for their facility and
also has -- had that for a long period of time. The boundary of the
submerged land lease -- if you want to move forward on the slides, if
you would. You've got some aerial views here.
It's a 44-slip facility currently. It stretches around the full
length of the property abutting to the west -- northwest, the
OneNaples development, shares a property line with them, and then
goes into the waterway, you know, working its way south to another
residential development there and office buildings, I believe.
So it's 44 slips. And you can see the docks are kind of random,
you know, and the boatlifts are kind of randomly placed. There's no
aesthetic, you know, modernization to the facility, so the proposed
plan is to ultimately modernize that, maintaining the slip count that
we have today, working within the boundary that is established by the
existing submerged land lease, and basically, working within that
box, which that box does also include the encroachments that we
have -- are proposing today through the NUA of a 0-foot setback on
this side and technically a 5-foot setback on the northwest side.
Right now the biggest difference between existing and proposed
is the docks do not ultimately -- they're not technically full-length
finger piers, we like to call them. So these slips currently are
25-and-a-half-foot slips expanding as you get out the further
waterway area and around the corner. The boundary -- if you would
move forward on the slide, actually. I think I've got the lease
boundary shown. So the lease boundary -- I might have it -- but this
is the lease boundary labeled right here by these mooring piles, so
August 22, 2024
Page 41
that's their visualization for the residents of the boundary. So they
do have mooring piles out the full length that we are technically
requesting to utilize with the proposed BDE/boat dock extension
request.
Currently, from the edge of seawall, we're 73 feet out.
Technically, our request is slightly minimizing that. We're asking
for a 51-foot boat dock extension from the allowed 20 feet, so overall
71 feet is our request.
Moving forward on the slides. That's just -- so you get a
visualization of the rebuild. It is very consistent with what we have
today. It's just -- move forward one more slide. It's got a little less
noise on it for you to see.
So the blue Xs that you see are -- we're proposing boatlifts in
every slip all the way around, as well as finger piers between each
slip, rebuilt above the proposed seawall, existing/proposed, and
full-length finger piers.
Now, the finger piers are technically an extension of what's there
today, so they're -- that is a change visually when you first -- existing
versus proposed. But they are full-length finger piers. They do not
go beyond the area that we're technically allowed to moor in and
utilize per the submerged land lease that we have as well as the
grandfathered allowance from Collier County that we currently have.
You know, we're here today bringing it -- changing it so, therefore,
we have to go through this process.
Moving forward. I'll touch on the criteria of both to get that all
in the record. But the subject waterway varies in width, as you
know, with the tightest part being on the canal side, and, you know,
we are within the 25 -- allowed 25 percent width. It's just -- it gets
tight over there on that side.
Moving forward, if you would, please; get to the criteria. Keep
going. There's the waterway widths. So this is the NUA criteria. I
August 22, 2024
Page 42
personally have never done an NUA. We started off with county
staff and worked with them. We started to go down the road of a
variance for the encroachments into the setbacks, you know, the
0-foot encroachment as well as the 5-foot by working with staff and
everybody. It was decided that the NUA was the proper path
forward due to the noncompliance issues that the department -- or
excuse me -- the property has from the docks to the pool as well as
other things.
Going through the criteria evaluation for this NUA is, No. 1, the
alteration, expansion, or replacement will not increase the density of
the parcel or lot on which the nonconforming single-family dwelling
duplex or mobile home is located. This -- as I've said, this place,
you know, was constructed back in 1984. So this place has been in
existence, and the docks have been there as well. So we are not
proposing to change any of that. This is just a, you know,
modernization of what they currently are allowed to do on site. So
that criteria was met.
The next criteria was, basically, the alteration, expansion, or
replacement will not exceed the building height requirements of the
district most closely associated with the subject nonconforming use.
And, basically, the proposed project is to modernize the dock,
shoreline, and upland pool and spa layout. The proposed project will
not increase heights at all in regards to the existing structures, upland
structures, or anything like that. So there's no change in regards to
that criteria.
The alteration, expansion, or replacement will not further
encroach upon any nonconforming setbacks. We already technically
encroach into the setbacks as it is, and we're looking to just maintain
that encroachment.
If you'd move forward on the next slide, you can follow this.
We're on the second one down for you that were looking at it.
August 22, 2024
Page 43
So, basically, again, the setback is 0 feet on the southeast side
and a 5-foot setback from the northwest side, and that's -- you know,
that's what we're proposing to maintain and, you know, keep as
current. So there is no other encroachment proposed or additional
encroachments proposed.
Next one, the alteration, expansion, or replacement will not
decrease or further decrease the existing parking areas for the
structure. The answer to that real quick is no. There are no changes
proposed. I believe this place can't afford to lose any more parking
places, so we are not proposing to change anything in regards to
parking.
Moving forward, the next slide. The next two criteria are kind
of wrapped into one. The alteration, expansion, or replacement will
not damage the character or quality of the neighborhood in which it's
located or hinder the proper future development of the surrounding
properties, and alteration, expansion, or replacement will not present
a threat to anyone or health or welfare of the community.
This is an existing facility. You know, we have 44 slips.
We're maintaining the 44 slips. We're actually decreasing the
overwater structure slightly from 3,792 square feet to 3,064 square
feet. And part of that, just to touch on it, is we're taking the finger
piers and making them a lot skinnier to make more beam width room
for the larger -- not larger, but the modernized facility with the actual
vessel sizes that are allowed in the boundary. So there's no changes
there, either, to the neighborhood.
So that's the NUA criteria. And staff agrees. We concur that
we, you know, met all that criteria. So the other, you know, part of
this is the boat dock extension.
Moving forward to that on the next slide, if you would. Run
through these as well to get them on the record. The Primary
Criteria No. 1 is -- you know, is this -- is it -- is what we're proposing
August 22, 2024
Page 44
consistent with the allowed upland land use. And this is a -- you
know, yes, we do. The property is technically zoned commercial
C-3, but it is being used as a multifamily residential and has been for
years, and per the Manatee Protection Plan, they let you have one slip
per unit, which we are consistent with as well.
So technically speaking, if this was a new facility today, we
would be able to do what we are proposing to do today; however it's
grandfathered. So they do have 60 livable units, excuse me, and 44
slips. So that is -- we do have less than one-to-one, excuse me. I
was wrong on that. So we are under that threshold.
HEARING EXAMINER DICKMAN: Yeah.
MR. ROGERS: Number 2 of the primary -- let me read you
what that is. Whether the water depth at the proposed site is
shallow, that the vessel of the general length, type, and draft as
described in the petitioner's application is unable to launch or moor at
mean low tide. You know, the overall project here is to expand the
facility and utilize full-length finger piers. The waters are shallow
up along the shoreline, kind of in the previous petition I was talking
to you about, shallower up in the shoreline and deeper out in -- out in
the more central part of the waterway. So, therefore, keeping the
vessel's sterns out in the waterway where it is deeper is the way to go
here and maintain the current use of the slips ingressing and
egressing.
HEARING EXAMINER DICKMAN: Yeah. So I have a
question on that one.
MR. ROGERS: Yep.
HEARING EXAMINER DICKMAN: The width of the
waterway. On the other side, it seems like your measurements go
further upland. Is that -- do you have a --
MR. ROGERS: It's because that's where the seawall is, so
technically that is where the water meets the shoreline, and, you
August 22, 2024
Page 45
know, Turrell did permit the Regatta Landing development --
HEARING EXAMINER DICKMAN: Okay.
MR. ROGERS: -- across the way years ago.
HEARING EXAMINER DICKMAN: Okay. That's another
one where the seawall is back, and there is some kind of step-down
or -- I get it. All right.
MR. ROGERS: Yeah. There's, like, a walkway, and then they
have a --
HEARING EXAMINER DICKMAN: I'm looking at the aerial.
MR. ROGERS: -- dock out into the walkway. So their docks
actually are marginal. They're only allowed to do marginal mooring
over there, just so you know. Because our applicant in front of you
today was there first and the waterway is tight, they couldn't do the,
you know, perpendicular. They had to go with parallel mooring.
So they do as well have a submerged land use in that area.
Tim Hall is here with me today, and he actually did that
permitting then. So they do have a submerged land lease, and they
are only allowed to do parallel mooring there --
HEARING EXAMINER DICKMAN: Gotcha.
MR. ROGERS: -- because we were first, so to speak, yeah.
So technically that's why. That one was a battle, too, to say the least,
from what I remember.
Number 3 of the primary, whether the proposed dock facility
may have an adverse impact on navigation within an adjacent marked
or charted navigable channel. This is not a marked channel. You
know, Vanderbilt Lagoon is marked, but it's well further north up in
the Water Turkey Bay. As you get closer to Wiggins Pass, that's
where it actually becomes a marked channel. That means the
waterway is open for safe navigation everywhere in between docking
facilities.
So we are maintaining that boundary that exists today with
August 22, 2024
Page 46
marked mooring piles and just extending the fingers out to that full
length dimension. So there should not be any new impacts to
navigation with this proposed activity.
Number 4, whether the proposed dock facility protrudes no more
than 25 percent of the width of the waterway, and, technically, over
where we are, the vessel sizes on the canal side are 25.5-foot slips
which, technically, is over -- you know, it's right at the 25 percent.
It's -- we're slightly over it, but that's, again, existing. That's what
we're allowed. So it is an encroachment in that, but it's -- it's
maintaining what's currently there and allowed.
Number 5, whether the proposed location and the design of the
dock facility is such the facility would not interfere with the use of
neighboring docks. To our knowledge, you know, no one is
subjected to this. It is existing, like I said, in regards to the
encroachment. Slips are allowed to be within that setback, which,
again, is why the NUA is being presented as well as the boat dock
extension.
Naples One -- OneNaples, we did that most recently. The
applicant did -- the owners did talk to us about it, and we clarified
with them what we're proposing, and they had no objections.
The other neighbor we did not hear from in regards to this.
So moving on to secondary criteria. Number 1 with that is
whether there are special conditions not involving water depth related
to the subject property or waterway that justify the proposed
dimension and locations of the proposed docking facility. It's -- you
know, this is all -- it's all history.
Move forward on the slide, if you would. The facility is
just -- oh, back one. I'm sorry. I guess I was on it.
The facility is grandfathered. We are just trying to reutilize and
modernize the facility. So, you know, the special conditions is we're
just using the existing allowable footprint and just reconfiguring
August 22, 2024
Page 47
what's there as well as adding a seawall that needs to be done.
So the method here is to demo the existing docks and then get to
the shoreline, fix the shoreline, and then rebuild the marina aspect.
The next one of special is the -- it pertains to excessive decking.
We are minimizing the decking on this. The finger piers are getting
much skinnier just to accommodate larger beam vessels, basically.
So we have minimized the decking, as I outlined before, by
approximately 700 square feet overall.
Number 3, this one pertains to single-families. This one's not
really applicable here.
So moving on to No. 4, whether the proposed facility would
have a major impact on the waterfront view. This is -- again, I feel
like I'm wash, rinse, repeat here on what I'm saying. It's existing or
just utilizing what's there, and there should be no new impacts other
than potentially every slip would have a boatlift now at this point,
so -- but not -- the facility's not always full either, so it's not going to
be 44 boats in the air at the same time. It could be, I mean,
technically. Yeah, I guess we have to look at it that way. But it
should be consistent with what's there today.
HEARING EXAMINER DICKMAN: With regard to that, I
mean, this is strictly for the -- the unit owners, right?
MR. ROGERS: Yes, sir.
HEARING EXAMINER DICKMAN: It's not going to be
commercial; there's not going to be any commercial aspect to it --
MR. ROGERS: Correct.
HEARING EXAMINER DICKMAN: -- or any non-unit
owners renting out slips or anything like that?
MR. ROGERS: Correct. And that's one thing we had to
clarify with staff because we are technically zoned commercial.
HEARING EXAMINER DICKMAN: I get it.
MR. ROGERS: But the use is multifamily. And I think it's
August 22, 2024
Page 48
conditioned in this -- if you were to pass this, that we would not be
doing that, and, no, there's -- it's for the upland use only.
HEARING EXAMINER DICKMAN: Okay, gotcha.
MR. ROGERS: Then, basically, No. 5, pertaining to the
seagrasses, and there are no seagrasses in this area either, so -- I dove
this one a couple times and -- actually numerous times over the years
that we've been working with them, and no seagrasses in this area.
Number 6 is the Manatee Protection Plan, and technically -- I
touched on this before -- if we are coming in front of you today and
asking this, you know, this place is a grandfathered, you know,
facility, predates the MPP of Collier County being adopted. So
anything that predates that was basically allowed to stay as-is, and if
you changed it, you'd have to try to comply with the MPP. And if
we did, we most likely would get the preferred ranking and be able to
do 18 slips per every 100 feet of shoreline that we have, which we're
well under that.
HEARING EXAMINER DICKMAN: Okay.
MR. ROGERS: So we -- if you have any questions, happy to
answer. Both Katie and I are here. And we just would like to
request approval of both of these petitions.
HEARING EXAMINER DICKMAN: I think you covered
everything.
Any questions from staff at all?
MR. KELLY: No, sir.
HEARING EXAMINER DICKMAN: Do we have any
speakers here today for this?
MS. PADRON: We do not have any speakers.
HEARING EXAMINER DICKMAN: Those must be your
clients or --
MR. ROGERS: It helps when you pay them off. No, just
kidding. It's summer, too.
August 22, 2024
Page 49
HEARING EXAMINER DICKMAN: I take that back.
MR. ROGERS: John got some calls, but other than that -- we
were expecting at least some, but...
HEARING EXAMINER DICKMAN: All right. Yeah. This
is pretty straightforward. I understand. Yes, this area did get hit
very, very hard. I think it was a 12- to 15-foot storm surge, and
almost every dock in that area --
MR. ROGERS: Yeah.
HEARING EXAMINER DICKMAN: -- got really badly
damaged.
MR. ROGERS: Yeah.
HEARING EXAMINER DICKMAN: So this is -- looks like
it's going to be an improvement. I've looked at everything. I don't
have any questions for you unless -- does counsel any anything else
to say or -- there's no rebuttal?
MS. BERKEY: One more thing.
HEARING EXAMINER DICKMAN: Ah.
MS. BERKEY: And if I may, that's the association's
representative, the president, Matt Seely. He just wanted me to
mention the hardship. Naturally, as you would imagine, post
Hurricane Ian, that it's been two years without their pool and spa
because of the seawall holding the upland improvements that are
necessary. Again, with the pool and spa, it's really a reorientation,
and, in fact, the setbacks will be more generous than they exist today,
so we appreciate your time and attention to this very important series
of cases.
HEARING EXAMINER DICKMAN: Yeah, no problem. I
get it. There's a lot of activity right there. The residents are going
to have -- living with the construction all over the place, so I get it.
Nice presentation. Nice to meet you and see you. Good job.
I'll get a decision -- decisions, plural, out as soon as I can.
August 22, 2024
Page 50
MS. BERKEY: Thank you very much.
HEARING EXAMINER DICKMAN: All right. Great.
Are you sure there's nobody here to speak?
Okay. Thank you.
Anything else?
(No response.)
HEARING EXAMINER DICKMAN: All right. Well, I want
to thank everybody for setting up this meeting. It's a lot of work for
staff, and I appreciate all the behind-the-scenes work that everyone
does and the court reporter being here. So thank you, everybody.
Appreciate it.
We're adjourned.
*******
August 22, 2024
Page 51
There being no further business for the good of the County, the
meeting was adjourned by order of the Hearing Examiner at 2:29
p.m.
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 TERRI L. LEWIS, REGISTERED
PROFESSIONAL REPORTER, FPR-C, AND NOTARY PUBLIC.