HEX Final Decision 2024-59HEX NO. 2024-59
HEARING EXAMINER DECISION
DATE OF HEARING.
November 149 2024
PETITION.
Petition No. VA-PL20240004206 — 267 3rd Street W - A variance to reduce the minimum
side yard riparian setbacks from 7.5 feet to 0 feet on both side yards for a proposed dock
facility within a Residential Single-Family-4 (RSF-4) zoning district. The subject property is
CONCURRENT LAND USE APPLICATIONS.
Companion Petition No. BD- PL20230018267, to allow the proposed boat dock facility to protrude
a total of 46 feet into a waterway that is 133± feet wide.
GENERAL PURPOSE FOR THE PETITION.
To have the Collier County Hearing Examiner (HEX) consider a variance request from Section
5.03.06.E.6 of the Collier County Land Development Code (LDC) to reduce the minimum side
yard riparian setbacks for dock facilities on lots with less than 60 feet of water frontage from 7.5
feet to 0 (zero) feet on both sides for a new dock facility with two slips, subject to the approval of
a companion Boat Dock Extension petition, for a lot with 32± 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 6
4. The County Staff presented the Petition followed by the Petitioner and/or Petitioner's
representative, public comment and then rebuttal by the Petitioner and/or Petitioner's
representative. There were no objections at the public hearing.
5. The Count6y'0 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 record evidence and testimony fi°om the public hearing i°effects that yes, the subject
property is legally nonconforming iet4th respect to the required lot area and ii)idth and is
not capable of supporting any listed permitted use within the RSF-4 zoning area in which
it is located. Given these circumstances, the subject propert3� is one of 23 for which a
11rovisional Use (noia� known as a Conditional Use) was granted in 1987 to allow such
properties to be used for "non-commercial boat launching facilities. " Additionally, there
is a limited amount of shoreline which results in a narrow riparian area further constricted
by neighboring dock facilities that limit the direction and orientation of any dock facilioJ
at this location. Most, if not all, of the docking facilities along the subject shoreline have
or will require a BDE and Variance to be code -compliant.
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 from the public hearing reflects that yes, the propert��'s
natural shoreline and length require additional protrusion due to the nai°row riparian
lines, which results in docks along this shoreline requiring a variance frrom riparian
setbacks to comply with current regulations.
3. Will a literal interpretation of the provisions of this zoning code work unnecessary
and undue hardship on the applicant or create practical difficulties for the applicant?
The record evidence and testimony from the public hearing reflects that the applicant's
expert states: "Yes, denial of a side setback variance for this propert3� would sevei°ely limit
the buildability and use of the lot, particularly in comparison to the nearby boat dock lots. "
Staff agrees that denial of this petition lvould create practical diff culties for the applicant.
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?
1 The Hearing Examiner's findings are italicized.
Page 2 of 6
The record evidence and testimony from the public hearing reflects that the applicant's
expert states: "The applicant is proposing to only utilize the space within their riparian
area and is proposing the same side setbacks as many of the nearby boat slip lots. And it
is our opinion that a side setback variance of 0' is reasonable for the circumstances. "
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 recor°d evidence and testimony fi°orn the public hear°ing 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 would be
entitled to make a similar request and would be conferred equal consideration on a case -
by -case basis.
6. Will granting the Variance be in harmony with the general intent and purpose of this
Land Development Code, and not be injurious to the neighborhood, or otherwise
detrimental to the public welfare?
The record evidence and testimony f °om the public hearing r°ejlects that yes, the applicant's
expert states: "The dock facility code as outlined in Chapter° 5. 03, 06A. states that:
"Docks and the like are pr°imarily intended to adequately secure moored vessels and
provide safe access for routine maintenance and use, while minimally impacting
navigation within any adjacent navigable channel, the use of the waterway, the use of
neighboring docks, the native marine habitat, manatees, and the vieiv of the waterway by
the neighboring property owners. "
The dock design as pr°oposed (a 4' x 41 'finger pier) is too narrow to provide any other
function but to access and crintcrin the vessels that will be on the attached boat lifts. The
project will leave 87' of space (more than 50% of the waterway ividth) for navigation,
which is ample for public use and should not impact the neighbors' vielvs as the dock will
be located between hivo similar dock facilities. Neither should the dock impact submerged
resources and, by extension, manatees. Considering that the project as proposed is
consistent ivith the general area's uses and other docks in the vicinity, our opinion is that
the proposed dock is in harmony with the intent and purpose of the zoning code. " County
staff concurs.
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 fr•om the public hearing reflects that yes, the applicant's
expert states: "The area �-vhich the proposed str°uctures lvoidd cover• per this variance
Page 3 of 6
petition consists of the sun face waters of a tidally connected waterway. Construction within
the riparian lines, as proposed, hill have no effect on the water and has been designed to
be compliant with the applicable state and federal restrictions for this location. The
proposed project will not proceed lvithout state and federal approvals from the Florida
Department of Environmental Protection and U. S. Army Corps of Engineers. " County staff
concurs.
8. Will granting the Variance be consistent with the Growth Management Plan (GMP)?
The record evidence and testimony fi°om the public hearing reflects that yes, approval of
this Variance will not affect or change the requirements of the GMP i4th respect to density),
intensity, compatibility, accessleonnectivily� or any other applicable provisions.
GROWTH MANAGEMENT PLAN (GMP) CONSISTENCY.
The subject property is in the Urban Mixed -Use District, Urban Residential Subdistrict and is
seaward of the Coastal High Hazard Area Boundary on the County's Future Land Use Map
(FLUM) of the Future Land Use Element (FLUE) of the GMP. The GMP does not address
individual Variance requests but deals with the larger issue of the actual use. The existing single
family use is consistent with the FLUM of the GMP. The requested variance does not have any
impact on this property's consistency with the County's GMP,
ENVIRONMENTAL ADVISORY COUNCIL (EAC) RECOMMENDATION.
The EAC does not normally hear variance petitions, and it did not hear this petition since the
subject variance doesn't impact any preserve area.
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-PL20240004206, filed by Nicic
Pearson of Bayshore Marine Consulting, LLC, representing Benson FL RE LLC, with respect to
the property legally described as located at 267 3rd Street West as Lot 3, Block G, Replat of Little
Hickory Shores Unit 3, in Section 5, Township 48 South, Range 25 East, Collier County, Florida,
for the following:
• A Variance request from Section 5.03.06.E.6 of the Collier County Land Development
Code (LDC) to reduce the minimum side yard riparian setbacks for dock facilities on lots
with less than 60 feet of water frontage from 7.5 feet to 0 (zero) feet on both sides for a
new dock facility with two slips, subject to the approval of a companion Boat Dock
Extension petition, for a lot with 32± feet of water frontage.
Said changes are fully described in the Zoning Atlas attached as Exhibit "A", the Dock Facility
Plans attached as Exhibit `B", and the Map of Boundary Survey attached as Exhibit "C", and are
subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A —Zoning Atlas
Exhibit B — Dock Facility Plans
Exhibit C — Map of Boundary Survey
LEGAL DESCRIPTION.
The subject property is located at 267 3rd Street West and is legally described as Lot 3, Block G,
Replat of Little Hickory Shores Unit 3, in Section 5, 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. This dock is private in nature and shall not be used for rental purposes, as stipulated
within Resolution No. 2000-51.
3. This dock shall not be used for any commercial purposes, including mooring
commercial boats, as stipulated within Resolution No. 2000-51.
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.
Page 5 of 6
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 6 of 6
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