HEX Final Decision 2024-49HEX NO. 2024-49
HEARING EXAMINER DECISION
DATE OF HEARING.
September 12, 2024
PETITION.
Petition No. BD-PL20230014603 —Request fora 213-foot boat dock extension from the
maximum permitted protrusion of 20 feet allowed by Section 5.03.06 of the Collier County
Land Development Code for waterways greater than 100 feet in width, to allow for the
replacement of an existing boardwalk with a new boardwalk that will include kayak storage,
paddle -craft launch, and covered gazebo, protruding a total of 233 feet into a waterway that
is 1,524 feet wide. The subject property is located in the Bay Forest Planned Unit
Development at 377 Bay Forest Drive in Section 8, Township 48 South, Range 25 East,
Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner requests a 213-foot boat dock extension from the maximum permitted protrusion of
20 feet for waterways greater than 100 feet in width to allow for the replacement of an existing
boardwalk with a new boardwalk that will include kayak storage, paddle -craft launch, and covered
gazebo, protruding a total of 233 feet into a waterway that is 1,524 feet wide.
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 several public
speakers, including the president of the homeowners association, in support of the petition and
one public speaker in opposition of the petition, because of the cost, at the hearing.
Page 1 of 8
5. The Petitioner must satisfy the LDC criteria for both the dock facility and for the boathouse.
6. Regarding the dock facility: In accordance with LDC Section 5.03.06.H., the Collier County
Hearing Examiner shall approve, approve with conditions, or deny a dock facility extension
request based on certain criteria. In order for the Hearing Examiner to approve this request, at
least four of the five primary criteria and four of the six secondary criteria must be met.'
Primary Criteria:
1. Whether the number of dock facilities and/or boat slips proposed is appropriate in
relation to the waterfront length, location, upland land use and zoning of the subject
property. Consideration should be made of property on unbridged barrier islands,
where vessels are the primary means of transportation to and from the property.
The number should be appropriate; typical single-family use should be no more
than two slips; typical multi -family use should be one slip per dwelling unit; in the
case of unbridged barrier island docks, additional slips may be appropriate.)
The r°ecord evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The applicant's expert stated: "The proposed structure replaces an existing
pier that has been in place since the early 1990s based on historical review. There are no
motorized vessels proposed, only a launch for paddle craft. The extension of the facility
Vas done to provide recreational opportunities for the residents of Bay Forest. The
extension allows for launching paddle craft, fishing, enjoying wildlife, and viewing sunsets.
In order to accommodate the neiv proposed paddle craft launch, the dock is being
shortened by approximately 20 feet from its current extension. The dock provides access
to and enjoyment of the water for all the residents of Bay Forest. " County staff concurred
and further notes that this is a private facility) with no public access and that there are no
real side or riparian setback issues at the subject location.
Z. 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 r•ecord evidence and testimony from the public hearing reflects that the crr.'ter°ion HAS
BEENMET. The applicant's expert stated.• "The ti-eater depths immediately waterward of
the mangroves are very shallow. Also, since one of the purposes of the walkway is to
provide fishing opportunities to the residents, the extension is out into water depths that
are more supportive for fishing than the shallola) waters immediately adjacent to the
mangroves. The depths further out also provide adequate depth for the proposed floating
launch. " County staff concurred; however, they note that the subject facility was not
designed for the mooring of standard marine vessels but ratherfor non -motorized kayaks
and canoes.
1 The Hearing Examiner's findings are italicized.
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 pzeblic hearing reflects that the criterion HAS
BEENMET. The applicant's expert stated: "The walkway and deck do not interfere with
any marked or charted navigational channel. This facilio) has been in place for several
91)-PL20230014603; Bay Forest Page 6 of 9 0812012024 decades without any impact to
navigation, and the proposed amendment will actually reduce the protrusion by
approximately 20 feet. " County staff concurred; however, they note that, as submitted, the
protrusion is being reduced by 5 feet but could be more depending on where the
measurement was taken from in the 1990s.
4. Whether the proposed dock facility protrudes no more than 25 percent of the width
of the waterway and whether a minimum of 50 percent of the waterway width
between dock facilities on either side is maintained for navigability. (The facility
should maintain the required percentages.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEENMET. The applicant's expert stated: "The facility does notprotrude more than 25%
the width of the waterway, which is approximately 1,524 feet, and with the proposed
amendment, will protrude about 20 feet less than the existing facility. As proposed, the
facility will protrude 15% of the waterway width. " County staff concurred and further
notes that there are no dockfacilities on the opposite shore.
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 f•om the public hearing reflects that the criterion HAS
BEEN MET. The applicant's expert stated: "There are no neighboring docks, and with
the conservation easements on the adjacent properties, none are expected in the filture.
The facility has not interfered with any docking in the past and will not do so in the future. "
County staff concurred.
Secondary Criteria:
1. Whether there are special conditions not involving water depth related to the
subject property or waterway that 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 3 of 8
The record evidence and testimony fi •om the public hearing reflects that the triter°ion HAS
BEENMET. The applicant's expert stated: "The shoreline is a natural mangrove fringing
forest, and the proposed extension of the facility locates the fishing and launching activities
well waterward of the shallow shoreline and mangroves. The site also has existing walkway
permits, which have been in place for° several decades. The proposed facility is a
replacement of the existing facility. The facility's location with conservation areas all
around it also allows for the extension, which has been in place to avoid interfering with
any neighboring property uses. " County staff 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 from the public hearing reflects that the criterion HAS
BEEN MET. The applicant's expert stated: "The addition of the paddle craft launch
provides a safer means of launching and recovering the vessels than is currently available.
The walkway, launch, and end pavilion are all the minimum dimensions to alloti>> for the
safe use of them by residents. " County staff concurred and further finds that there is no
excessive decking.
3. For single-family dock facilities, whether the length of the vessel or vessels in
combination described by the petitioner exceeds 50 percent of the subject property's
linear waterfront footage. (The applicable maximum percentage should be
maintained.)
The record evidence and testimony from the public hearing reflects that the criterion is not
applicable. This petition is for a private multi family boat docking facility, and no
motorized vessels will be allowed at the facility.
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: "The waterfi°ont view of the neighboring
properties will not appreciably change. The facility includes a new paddle craft launch,
btit the launch is below the decking elevation that has been in place for decades and will
not increase any view restriction. " Coumy staff concurred
5. Whether seagrass beds will be impacted by the proposed dock facility. (If seagrass
beds are present, compliance with subsection 5.03.06.J of the LDC must be
demonstrated.)
The record evidence and testimony fi°om the public hearing reflects that the criterion HAS
BEENMET. The applicant's expert stated: "There are numerous beds of seagrass present
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within the subject bay area; however, no impacts are proposed, nor will the proposed
structure be tii4thin 10 feet of the observed seagrass beds. " County staff concurred.
6. Whether the proposed dock facility is subject to the manatee protection
requirements of subsection 5.03.06(E)(11) of this Code. (If applicable, compliance
with section 5.03.06(E)(11) must be demonstrated.
The record evidence and testimony from the public hearing reflects that the criterion is not
applicable. The applicant's expert stated: "This facility is not subject to the Manatee
Protection Plan. " County staff concurred, finding that there are zero slips for use by
motorized vessels.
Regarding the boathouse: In accordance with LDC Section 5.03.06.F., the Collier County
Hearing Examiner shall approve, approve with conditions, or deny a Boathouse request
based on certain criteria. Boathouses, including any roofed structure built on a dock,
shall be reviewed by the Hearing Examiner according to the following criteria, all of
which must be met in order for the Hearing Examiner to approve the request,
Boathouse Criteria:
1. Minimum side setback requirement: Fifteen Feet.
The record evidence and testimony ji°om the public hearing �°eflects that the criterion
HAS BEENMET. The nearest applicable side or riparian line is greater than 15 feet
from either side of the subject gazebo/boathouse and boardwalk, kayak launch facility.
2. Maximum protrusion into waterway: Twenty-five percent of canal width or 20
feet, whichever is less. The roof alone may overhang no more than 3 feet into the
waterway beyond the maximum protrusion and/or side setbacks.
The record evidence and testimony from the public hearing reflects that the criterion
HAS BEEN MET. Subject to approval of the Boat Dock Extension element of this
petition, which will extend the point of maximum protrusion to 233 feet from the Mean
High Water Line. As per Sheet 08 of the provided plans, the roof overhang alone will
not protrude greater than 3 feet beyond the maximumi protrusion of 233 feet.
3. Maximum height: Fifteen feet as measured from the top of the seawall or bank,
whichever is more restrictive, to the peak or highest elevation of the roof.
The record evidence and testimony from the public hearing reflects that the criterion
HAS BEENMET. The proposed gazebo/boathouse will measure not exceeding 1 S feet
above the top of the boar&iw1k/dock facility.
2 The Hearing Examiner's findings are italicized.
Page 5 of 8
4. Maximum number of boathouses or covered structures per site: One.
The record evidence and testimony from the public hearing reflects that the criterion
HAS BEENMET. There are no other like facilities located on this site.
5. All boathouses and covered structures shall be completely open on all four sides.
The record evidence and testimony fr°om the public hearing reflects that the criterion
HAS BEENMET. The facility will be open on allfour sides.
6. Roofing material and roof color shall be the same as materials and colors used on
the principal structure or may be of a palm frond "chickee" style. A single-family
dwelling unit must be constructed on the subject lot prior to, or simultaneously
with, the construction of any boathouse or covered dock structure.
The record evidence and testimony from the public hearing t•eflects that the criterion
HAS BEEN MET As per Sheet 08 of the provided plans, the roofing material will be
of a chickee style or match that of the upland clubhouse.
7. The boathouse or covered structure must be so located as to minimize the impact
on the view of the adjacent neighbors to the greatest extent practical.
The record evidence and testimony from the public hearing reflects that the crite�°ion
HAS BEENMET. The subject facility is isolated ivithin a forested preserve area and
will not affect any neighbor's view.
ENVIRONMENTAL EVALUATION.
Environmental Planning Staff has reviewed this petition and has no objection to the granting of
this request. The proposed six-foot wide boardwalk replaces an existing boardwalk to be
constructed through native vegetation containing wetlands (0.25 Acres). A Florida Department of
Environmental Protection (FDEP) permit and US Army Corps of Engineers (USACE) permit will
need to be approved for the proposed kayak launch. State and Federal permissions have been
granted to rebuild the walkway. A submerged resources survey provided by the applicant indicates
there are areas of seagrasses (paddle grass, Halophila decipiens) found within 200 feet of the
proposed boardwalk; however, no impacts to submerged resources will occur. The location of the
boardwalk will be setback greater than 10 feet per LDC section 5.03.06.J.
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.
The Hearing Examiner concludes that there is enough competent, substantial evidence based on
the review of the record that includes the Petition, application, exhibits, the County's staff report,
and comments and testimony from the Petitioner and/or their representative(s), County staff and
anyone from the public, to approve the Petition for the boat dock and boathouse. The boat dock
petition meets 5 primary criteria and 4 secondary criteria out of 5 and 6 respectively, with two
criterion being not applicable. The boathouse petition meets all of the criteria. The criteria are set
forth in Section 5.03.06.H and Section 5.03.06.F of the Land Development Code.
DECISION.
The Hearing Examiner hereby APPROVES Petition Number BD-PL20230014603, filed by Jeff
Rogers of Turrell, Hall and Associates, Inc., representing Bay Forest, Homeowner's Association,
Inc., with respect to the property described as located on the west side of Vanderbilt Drive,
approximately one mile north of Wiggins Pass Road at 377 Bay Forest Drive, in Section 8,
Township 48 South, Range 25 East, Collier County, Florida, for the following:
• To allow a 213-foot boat dock extension from the maximum permitted protrusion of 20
feet allowed by Section 5.03.06 of the Collier County Land Development Code (LDC) for
waterways greater than 100 feet in width to allow for the replacement of an existing
boardwalk with a new boardwalk that will include kayak storage, paddle -craft launch, and
covered gazebo, protruding a total of 233 feet into a waterway that is 1,524 feet wide.
Said changes are fully described in the Zoning Map attached as Exhibit "A", the Bay Forest
Boardwalk Plans attached as Exhibit "B and the CCPC Resolution 93-25 BD-93-14 attached as
Exhibit "C", and are subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A —Zoning Map
Exhibit B —Bay Forest Boardwalk Plans
Exhibit C — CCPC Resolution 93-25 BD-9344
LEGAL DESCRIPTION.
The subject property is located on the west side of Vanderbilt Drive, approximately one mile north
of Wiggins Pass Road at 377 Bay Forest Drive, in Section 8, Township 48 South, Range 25 East,
Collier County, Florida.
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
2. Motorized vessels are prohibited from using the subject Boardwalk as a docking facility.
Page 7 of 8
DISCLAIMER.
Pursuant to Section 125.022(5) F.S., issuance of a development permit by a county does not in any
way create any rights on the part of the applicant to obtain a permit from a state or federal agency
and does not create any liability on the part of the county for issuance of the permit if the applicant
fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or
undertakes actions that result in a violation of state or federal law.
APPEALS.
This decision becomes effective on the date it is rendered. An appeal of this decision shall be done
in accordance with applicable ordinances, codes and law.
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.
October 1, 2024
Date
Andrew Dickman, Esq., AICP
Hearing Examiner
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p?22086.00 bay forest homeo�mers association\CADIPERAIIT-COUNTY\22086 - COUNTY-KAYAK.dwg SUBMERGED RESOURCE SURVEY 6I24/2024
BD-93-12 (CB) Donald Lusk representing Lely Development
6/2/93 Corp., requesting a 33.75 foot and a 25.01
foot extension for a boat docking facility on
property located within the Lely Barefoot
Beach PUD in Section 6, Township 48 South,
Range 25 East.
CCPC 8/5/93 RES 93-24 FEE $250.00
3D-93-13 (CB) Miles L. Scofield of Turrell & Associates,
6/9/93 Inc., representing David Wohl, requesting a 5
foot boat dock extension to allow for a 25
foot boat dock facility for property located
at 160 Peach Court, further described as Lot
8, Block 168, Marco Beach Unit 5.
CCPC 8/5/93 RES 93-22 FEE $250.00
3D-93-14 (CB) McGee & Associates, Inc., representing Bay
7/6/93 Forest Homeowners Association, Inc.,
requesting a 218 foot boat dock extension to
allow for a 238 foot fishing pier for
property located within the "Bay Forest" PUD
in Section 8, Township 48 South, Range 25
East.
CCPC 8/15/93 RES 93-25 FEE $250.00
BD-93-15 (CB Miles L. Scofield of Turrell & Associates
7/8/93 representing Wayne Newsome requesting a 10
foot boat dock extension to allow for a 30
foot boat dock facility for property located
at 152 Connors Ave., further described as Lot
21, Block "R", Connors Vanderbilt Beach
Estates.
CCPC 8/19/93 RES 93-26 FEE $250.00
3D-93-16 (RM) David Salo of Kelly Brothers, representing
8/16/93 Chateau Vanderbilt Condominium Association,
requesting a 5 foot boat dock extension to
allow for a 25 foot boat docking facility for
property located at 9101 Vanderbilt Drive
further described as Lots 1 & 2, Block G,
Unit 2, Section 32, Township 48, Range 25,
Connors Vanderbilt Estates, Collier County
Florida.
CCPC 10/7/93 RES 93-30 FEE $250.00
3D-93-17 (WA) Donald P. Ricci, Jr., representing William
8/23/93 McCaw, requesting a 10 foot boat dock
extension to allow for a 15 foot boat dock