HEX Final Decision 2024-57HEX NO. 2024-57
HEARING EXAMINER DECISION
DATE OF HEARING.
November 14, 2024
PETITION.
Petition No. VA-PL20230012485 — 10030 Gulf Shore Drive - A variance to reduce the
required side yard riparian setback of 15 feet to 8.1 feet for a dock facility on a lot with 67.53
feet of water frontage, located on Lot 30, Block B, Re -Subdivision of Part of Unit No. 1,
Conner's Vanderbilt Beach Estates, Collier County, Florida.
CONCURRENT LAND USE APPLICATIONS.
Companion Petition No. BD-PL20230008895 to allow the subject dock facility to protrude 52 feet
into a waterway that is 534.8± feet wide.
GENERAL PURPOSE FOR THE PETITION.
To have the Collier County Hearing Examiner (HEX) consider a variance request from Land
Development Code (LDC) to reduce the required side yard riparian setback of 15 feet to 8.1 feet
for a dock facility on a lot with 67.53 feet of water frontage.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(2) of the
Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of
the County Administrative Code.
2. The public hearing for this Petition was properly noticed and conducted in accordance with all
County and state requirements.
3. The public hearing was conducted electronically and in -person in accordance with
Emergency/Executive Order 2020-04.
Page 1 of 5
4. The County Staff presented the Petition followed by the Petitioner and/or Petitioner's
representative, public comment and then rebuttal by the Petitioner and/or Petitioner's
representative. There were no objections at the public hearing. The property owner to the south
provided a letter of no objection.
5. While there is a worrisome proliferation of petitioners with very large vessels seeking
variances for waterfront single family dwellings, the Hearing Examiner must apply existing
policy in the code and not create new policy.
6. The County's Land Development Section 9.04.03 lists the criteria for variances. The Hearing
Examiner having the same authority as the Board of Zoning Appeals may grant, deny, or
modify any request for a variance from the regulations or restrictions of the Collier County
Land Development Code.I
1. Are there special conditions and circumstances existing, which are peculiar to the
location, size and characteristics of the land, structure or building involved?
The recot"d evidence and testimony fi"om the public heap"ing reflects that the applicant's
expert states: "Yes, the curve shaped shoreline limits what proposed docking facility can
be introduced Also, with the presence of the docks at both neighboring properties, the
property oumer is limited in which direction they can access the docking facility without
causing any navigational issues. " County staff concurs and notes that concerning the
tivatetf"ont, were this property at the end of a canal the LDC would allow reduced side
setbacks of 7.5 feet for dock facilities. The curvature of the waterway presents a unique
challenge to the subject and surrounding properties.
2. Are there special conditions and circumstances, which do not result from the action
of the applicant such as pre-existing conditions relative to the property, which are the
subject of this variance request?
The record evidence and testimony fi"onz the public hearing reflects that the applicant's
expet"tstates: "Yes, as stated above, the pr"opet"ty's shape of shoreline and limited shoreline
length requires additional protrusion due to the pie shape riparian lines. Due to these
factors and the properly owner's vessel size, these are the special conditions driving this
side yard setback variance request. " County staff further notes that the subject property
vas platted prior to the current owner's purchase of the property.
3. Will a literal interpretation of the provisions of this zoning code work unnecessary
and undue hardship on the applicant or create practical difficulties for the applicant?
The record evidence and testimony f•om the public hearing reflects that the applicant's
expert states: "Yes. The denial of the Variance petition woidd not allow the owner to store
any of their vessels at the property safely with the proposed dock and boat lifts. " Zoning
staff finds that the unique shape of the property offers unique watetf °ont challenges which
severely limit use of the property's lvateifront.
1 The Hearing Examiner's findings are italicized.
Page 2 of 5
4. Will the Variance, if granted, be the minimum Variance that will make possible the
reasonable use of the land, building or structure and which promote standards of
health, safety, and welfare?
The record evidence and testimony fi°om the public hearing rejlects that the applicant's
expert states: "Yes. The proposed docking facilio) has been reduced to the minimum size
and still provides safe access. County staff concurs.
5. Will granting the Variance confer on the applicant any special privilege that is denied
by these zoning regulations to other lands, buildings, or structures in the same zoning
district?
The record evidence crrzd testimony from the public hearing reflects that, by definition, a
variance bestows some dimensional relief from the zoning regulations specific to a site.
LDC Section 9.04.02 allows relief through the variance process for any dimensional
development standard. As such, other properties facing a similar hardship ivourld be
entitled to make a similar request and would be conferred equal consideration on a case -
by -case basis.
6. Will granting the Variance be in harmony with the general intent and purpose of this
Land Development Code, and not be injurious to the neighborhood, or otherwise
detrimental to the public welfare?
The record evidence and testimony from the public hearing reflects that the applicant's
expert states: "Yes. The variance is for a single family docking facility that will not affect
the functionality of any surrounding lots but allow this property to be consistent with the
others along the same subject shoreline. " Zoning staff concurs and has received a letter of
no objection from the property owner to the south.
7. Are there natural conditions or physically induced conditions that ameliorate the
goals and objectives of the regulation such as natural preserves, lakes, golf courses,
etc.?
The record evidence and testimony fi•orn the public hearing reflects that the applicant's
expert states: "The variance hill allow the construrction of a pr°ivate single family docking
facilio3, which will increase the recreational value of the property and the Conner•'s
Vanderbilt area. " County staff notes that the location of the subject dock facility is at a
curve of the waterway that limits any boating traffic from getting close to the proposed
dock as the turn lvould be too tight to maneuver. Pr•oper•ties in this area are now required
to be built to such an elevation that docking facilities should not have a severe impact to
lvaterfr•ont vieivs.
Page 3 of 5
8. Will granting the Variance be consistent with the Growth Management Plan (GMP)?
The record evidence and testimony from the public hearing refiects that yes, approval of
this Variance i/011 not affect or change the requirements of the GMP concerning densioJ,
intensity, compatibility, access/connectivity, or any other applicable provisions.
GROWTH MANAGEMENT PLAN (GMP) CONSISTENCY.
The subject property is in the Urban Mixed Use Residential land use classification on the County's
Future Land Use Map (FLUM). This land use category is designed to accommodate a variety of
residential uses, including single-family, multi -family, duplex, mobile homes, and mixed -use
projects. As previously noted, the subject petition seeks a variance to reduce the required front
yard for a single-family residence, which is an authorized use within this land use designation.
Therefore, the use is consistent with the FLUM. The Growth Management Plan (GMP) does not
address individual variance requests; the GMP deals with the larger issue of the actual use.
ENVIRONMENTAL ADVISORY COUNCIL (EAC) RECOMMENDATION.
The EAC does not normally hear variance petitions. Since the subject variance does not impact
any preserve area, the EAC did not hear this petition.
ANALYSIS.
Based on a review of the record including the Petition, application, exhibits, the County's staff
report, and hearing comments and testimony from the Petitioner and/or the Petitioner's
representative(s), County staff and any given by the public, the Hearing Examiner finds that there
is enough competent, substantial evidence as applied to the criteria set forth in Section 9.04.03 of
the Land Development Code to approve the Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-PL20230012485, filed by Mark
Oreus of Greg Orick II Marine Construction, Inc., representing James Cerkieski, Trustee of the
James Cerkleski Trust, with respect to the property legally described as located at 10030 Gulf
Shore Drive, at the southeast corner of Gulf Shore Drive and Bayview Avenue, also known as Lot
30, Block B, Re -Subdivision of Part of Unit No. 1, Conner's Vanderbilt Estates, in Section 29,
Township 48 South, Range 25 East, Collier County, Florida, for the following:
• A Variance request from Land Development Code (LDC) Section 5.03.06.E.6 to reduce
the required side yard riparian setback of 15 feet to 8.1 feet for a dock facility on a lot with
67.53 feet of water frontage.
Said changes are fully described in the Zoning Map attached as Exhibit "A", the Survey and Site
Plan with Proposed Improvements attached as Exhibit "B", and the Proposed Dock Plan attached
as Exhibit "C", and are subject to the condition(s) set forth below.
Page 4 of 5
ATTACHMENTS.
Exhibit A — Zoning Map
Exhibit B — Survey and Site Plan with Proposed Improvements
Exhibit C — Proposed Dock Plan
LEGAL DESCRIPTION.
The subject property is located at 10030 Gulf Shore Drive, at the southeast corner of Gulf Shore
Drive and Bayview Avenue, also known as Lot 30, Block B, Re -Subdivision of Part of Unit No.
1, Conner's Vanderbilt Estates, in Section 29, Township 48 South, Range 25 East, Collier County,
Florida.
CONDITIONS.
• All other applicable state or federal permits must be obtained before commencement of the
development.
• The variance for the boat dock facility is predicated on the construction of the single family
home referenced in the record. Should this home not be built, this decision is null and void.
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,
November 26, 2024
Date
Andrew Dickman, Esq., AICP
Hearing Examiner
Page 5 of 5
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