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HEX Final Decision 2024-46HEX NO. 2024-46 HEARING EXAMINER DECISION DATE OF HEARING. August 225 2024 PETITION. Petition No. BD-PL20220005339 — 271 Southbay Drive -Request fora 51-foot boat dock extension over the maximum permitted protrusion of 204eet for a total protrusion of 71-feet into a waterway greater than 1004eet in width pursuant to Land Development Code Section 5.03.06.E.1 to allow for minor alteration/reconstruction of a private multi -family boat docking facility with 44 slips abutting a bay that is 748-feet wide to the north and a canal that is 100-feet wide to the east. The subject property is located at 271 Southbay Drive in Section 32, Township 48 South, Range 25 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The petitioner requests a 51-foot boat dock extension from the maximum permitted protrusion of 20 feet for a total protrusion of 71 feet into a waterway greater than 100 feet in width to allow for minor alteration/reconstruction of a private multi -family boat docking facility with 44 slips abutting a bay that is 748 feet wide to the north and a canal that is 1004eet wide to the east. STAFF RECOMMENDATION. Approval with conditions. FINDINGS. 1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(4) of the Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of the County Administrative Code. 2. The public hearing for this Petition was properly noticed and conducted in accordance with 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 public hearing was conducted in the following manner: the County Staff presented the Petition followed by the Petitioner and/or Petitioner's representative, public comment and then rebuttal by the Petitioner and/or Petitioner's representative. There were no objections at the public hearing. Page 1 of 7 5. The County's Land Development Section 5.03.06.1-1. lists the criteria for dock facility extensions. The Hearing Examiner may approve, approve with conditions, or deny a boat dock extension request if it is determined that at least four (4) of the five (5) primary criteria, and at least four (4) of the six (6) secondary criteria have been met.I Primacy Criteria: l . Whether the number of dock facilities and/or boat slips proposed is appropriate in relation to the waterfront length, location, upland land use and zoning of the subject property. Consideration should be made of property on unbridged barrier islands, where vessels are the primary means of transportation to and from the property. (The number should be appropriate; typical single-family use should be no more than two slips; typical multi- family use should be one slip per dwelling units in the case of unbridged barrier island docks, additional slips may be appropriate.) The record evidence and testimony fi°om the public hearing r°eflects that the criterion HAS BEEN MET. The subject private multiple family residential dock facility comprises 44 individual slips that serve a residential condominittm 14)ith 60 dwelling units; as such, not all dwelling units ham a boat slip, and none exceed the one -slip limit. 2. Whether the water depth at the proposed site is so shallow that a vessel of the general length, type and draft as that described in the petitioner's application is unable to launch or moor at mean low tide (MLT). (The petitioner's application and survey should establish that the water depth is too shallow to allow launching and mooring of the vessel(s) described without an extension.) The record evidence and testimony from the public hear°ing reflects that the triter°ion HAS BEEN MET. The applicant's expert stated that: "The proposed boat dock project is to modernize the existing docking facilify by extending the existing f nger piers lvith new boat lifts that i-nill extend out to sufficient water depths. As proposed, the overall existing slip sizes 1-nill not change. The proposal is simply to construct new fill -length finger piers, which ioi4ll then allotli> proper perpendicular• mooring, keeping the deepest drafting part of the boats out in deeper water•. " County staff has concurred 3. Whether the proposed dock facility may have an adverse impact on navigation within an adjacent marked or charted navigable channel. (The facility should not intrude into any marked or charted navigable channel thus impeding vessel traffic in the channel.) The record evidence and testimony from the public hearing reflects that the criterion HAS BEEN MET. The applicant's expert stated that: "There is no marked channel at or adjacent to the proposed project location. Therefore, no marked or navigable channels 1-v4ll be affected by the proposed project Additionally, the proposed dock layout is all lvithin the existing submerged land lease boundary; therefore, both the DEP and USACE have agreed there hill not be any significant impacts to the subject 14)aterienays and associated navigation TOthin the ilmter•way. " County staff has concurred. 1 The Hearing Examiner's findings are italicized. Page 2 of 7 4. Whether the proposed dock facility protrudes no more than 25 percent of the width of the waterway, and whether a minimum of 50 percent of the waterway width between dock facilities on either side is maintained for navigability. (The facility should maintain the required percentages.) The r°ecord evidence and testimony fi°orn the public hearing reflects that the criterion has been met as to the bayside of the subject pr•operth and has not been met cis to the canal side towards the terminus end. The applicant's expert states: "The approximate ivatertivay width is 100.4 feet along the canal side and 751 feet i)Hide out on the bay/lagoon side of the property. The proposed dock protrusion where the waterway is approximately 100.4 feet Vide is 25.5 feet in length overall (LOIA); therefore, the vessels would be approximately 25.4% of the width of the waterway but still lyithin the existing submerged land lease boundary. The remaining slips are larger, up to 44.5 feet LOA, due to waterway width Increases. This project site has water fi°outage both on a bay crud a canal. Within the bay, tlae 25% and 50% limitations ivill be maintainedPer the plat, the canal is 100 feet in ividth. The docks tivith vessels at this point ivould extend to 25.5 feet, which is beyond 25% of the width of the iaterway (25.4%). Furthermore, the remaining navigable waterfront, iyhen considering the docks and potentially moored vessels on the opposite side of the ivaterivay, would not leave 50% of the waterway open. Rather, we estimate that approximately 40 feet of lyidth would remain for public navigation, ivhich is adequate in our professional opinion. Additionally, the area outside the alloi-ved 25% is located towards the terminus end of the canal, and the amount of navigation within this canal is minimal and would mostly consist of local traffic ingress/egress to their pr•opero). " County staff has concurred. 5. Whether the proposed location and design of the dock facility is such that the facility would not interfere with the use of neighboring docks. (The facility should not interfere with the use of legally permitted neighboring docks.) The record evidence and testimony fi°om the public hearing r°effects that the criterion HAS BEEN MET. The applicant's expert stated that: "The proposed docking facility is consistent ivith the existing docking facility currently on -site. As proposed, the dock ivill maintain the existing conditions and associated access. The requested extension and encroachment into the side yard setbacks is consistent with holy the facility is currently utilized and has been since it ivas originally constructed. " County) staff has concurred as the existing crud proposed facilities are substantially similar. Secondary Criteria: 1. Whether there are special conditions not involving water depth, related to the subject property or waterway, which justify the proposed dimensions and location of the proposed dock facility. (There must be at least one special condition related to the property; these may include type of shoreline reinforcement, shoreline configuration, mangrove growth, or seagrass beds.) Page 2 of 7 The record evidence and testimony from the public hearing reflects that the criterion HAS BEENMET. The applicant's expert stated that: "The subject property special conditions consist of the legally nonconforming existing dock configuration, the associated submerged land lease (SLL), and linear footage of the shoreline. As proposed, the SLL is the existing approved boundary ii)ith DEP, which allows the Applicant to work within, but not to increase, the overall boundary size/area. This factor limited the Applicant's dock design options to replace ilMat exists but ivould allow for the modernization of the dock layout as well cis the installation of a new seawall approximately 18 inches in front of the existing one. These design changes will accommodate larger vessels lvith fidl-length fr.nger piers, all to be contained ili4thin the existing SLL boundary area. The surrounding waterway width does allow for the Applicant to maintain the overall protrusion request and the fact that these docks are pre-existing, not proposing an increase to the overall protrusion will maintain the current use for the surrounding properties. " County staff has concurred. 2. Whether the proposed dock facility would allow reasonable, safe access to the vessel for loading/unloading and routine maintenance, without the use of excessive deck area not directly related to these functions. (The facility should not use excessive deck area.) The record evidence and testimony fi°om the public hearing reflects that the criterion HAS BEENMET. The applicant's expert stated that: "The proposed docking facility has been filly minimized, reducing the overall overwater square footage from 3,792 square feet to 3,064 square feet and still provides sufficient deck ar°ea for routine maintenance and safe access. " County staff has concurred that there is no excessive decking. 3. For single-family dock facilities, whether the length of the vessel, or vessels in combination, described by the petitioner, exceeds 50 percent of the subject property's linear waterfront footage. (The applicable maximum percentage should be maintained.) The record evidence cmd testimony ji°orrz the public hearing reflects that the criterion is not rrpplicixble. This petition is for a private multi family boat docking facilitJ�. 4. Whether the proposed facility would have a major impact on the waterfront view of neighboring property owners. (The facility should not have a major impact on the view of a neighboring property owner.) The record evidence and testimony from the public hearing reflects that the criterion HAS BEEN MET. The applicant's expert stated that: "As proposed, the dock facilitJ� has been designed to be consistent i44th the existing docking facilioJ that is currently there and has been since 1984. There are no new impacts to either adjacentpropero) olvner° cis their vielvs 1W11 not change. " County staff has concurred. 5. Whether seagrass beds will be impacted by the proposed dock facility. (If seagrass beds are present, compliance with subsection 5.03.06.J of the LDC must be demonstrated.) Page 4 of 7 The record evidence and testimony from the public hearing reflects tlzcit the criterion HAS BEEN MET. The applicant's expert stated that: "There are no seagrass beds present on the property nor the neighboring properties 1-vithin 200 feet of the existing dock structure. " Given the information provided tivithin the provided Submerged Resources Survey, County staff concurs. 6. Whether the proposed dock facility is subject to the manatee protection requirements of subsection 5.03.06(E)(11) of this Code. (If applicable, compliance with section 5.03.06(E)(I 1) must be demonstrated.) The record evidence and testimony f •on2 the public hearing reflects that the criterion HAS BEEN MET. The applicant's expert stated that: "The proposed work is a multi family dock facility and subject to Manatee Protection Plan (MPP) requirements. As designed, the docking facility is consistent with the MPP. " County staff has concurred. ENVIRONMENTAL EVALUATION. Environmental Planning Staff has reviewed this petition and has no objection to the granting of this request. The property is located next to the Vanderbilt Lagoon. The 44 proposed Boat Slips will be constructed waterward of the existing seawall. The shoreline does not contain native vegetation. A submerged resources survey provided by the applicant found no submerged resources in the area 200 feet beyond the proposed docking facility. This project does not require an Environmental Advisory Council Board (EAC) review because this project did not meet the EAC scope of land development project reviews as identified in Chapter 2, Article VIII, Division 23, Section 2-1193 of the Collier County Code of Laws and Ordinances. ANALYSIS. Based on a review of the record including the Petition, application, exhibits, the County's staff report, and hearing comments and testimony from the Petitioner and/or the Petitioner's representative(s), County staff and any given by the public, the Hearing Examiner finds that there is enough competent, substantial evidence as applied to the criteria set forth in Section 5.03.06.1-1 of the Land Development Code to approve this Petition. The Petition meets 4 out of 5 of the primary criteria and 5 out of 6 secondary criteria, with one criterion being not applicable. DECISION. The Hearing Examiner hereby APPROVES Petition Number BD-PL20220005339, filed by Jeff Rogers of Turrell, Hall &Associates, Inc., representing Barefoot Pelican Condominium Association, Inc., and Kathleen O. Berkey, AICP, Becker & Poliakoff with respect to the subject property described as a 1.3-acre property that is located at 271 Southbay Drive, within Barefoot Pelican, A Waterfront Condominium, in Section 29, Township 48 South, Range 25 East, Collier County, Florida, for the following: Page 5 of 7 • The petitioner requests a 51400t boat dock extension from the maximum permitted protrusion of 20 feet for a total protrusion of 71 feet into a waterway greater than 100 feet in width pursuant to Land Development Code (LDC) Section 5.03.06.E.1 to allow for minor alteration/reconstruction of a private multi -family boat docking facility with 44 slips abutting a bay that is 748 feet wide to the north and a canal that is I00-feet wide to the east. Said changes are fully described in the Zoning Map attached as Exhibit "Athe Proposed Site and Dock Plans attached as Exhibit "B", the Map of Specific Purpose Survey attached as Exhibit "C", and Plat -PB3 PG16 attached as Exhibit "D", and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A —Zoning Map Exhibit B — Proposed Site and Dock Plans Exhibit C — Map of Specific Purpose Survey Exhibit D — Plat - PB3 PG16 LEGAL DESCRIPTION. BAREFOOT PELICAN, A WATERFRONT CONDOMINIUM, a Condominium according to the Declaration of Condominium thereof recorded in Official Records Book 1069, page 1837, and as amended and restated in Official Records Book 5489, page 1753, of the Public Records of Collier County, Florida, and all amendments thereto, together with its undivided share in common elements. CONDITIONS. 1. All other applicable state or federal permits must be obtained before commencement of the development. 2. Approval is predicated upon the approval of the companion Nonconforming Use Alteration petition, NUA-PL20240006168, by the Hearing Examiner; absent such approval, this BD is void. 3. This dock facility is private in nature and shall not be used for rental or commercial purposes. DISCLAIMER. Pursuant to Section 125.022(5) F.S., issuance of a development permit by a county does not in any way create any rights on the part of the applicant to obtain a permit from a state or federal agency and does not create any liability on the part of the county for issuance of the permit if the applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. Page 6 of 7 APPEALS. This decision becomes effective on the date it is rendered. An appeal of this decision shall be done in accordance with applicable ordinances, codes and law. RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES. 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