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HEX Final Decision 2024-66HEX NO. 2024-66 HEARING EXAMINER DECISION DATE OF HEARING. December 129 2024 PETITION. Petition No. VA-PL20240001659 — 824 and 828 98th Ave North -Request for a variance from Land Development Code Section 5.03.02.C.2.b to increase the required RMF-6 zoned fence height from 6 feet to 8 feet on the west and east side property lines and the south rear property line on approximately 0.38 acres located at 824 and 828 98th Ave North, also known as Lots 37, 38 and part of Lot 39, Block 64 of the Naples Park Unit 5 subdivision in Section 28, Township 48 South, Range 25 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. A request for a variance to increase the required RMF-6 zoned fence height from 6 feet to 8 feet on the west and east side property lines and the south rear property line. 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 %J 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 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 four letters in support. There was one letter in objection from neighbors to the property, Olga and Vadim Muchnik, who appeared via Zoom as speakers at the public hearing in objection to raising the height of the fence side next to their property. Page 1 of 5 5. The subject property consists of two newly built single family homes built under the new flood elevation requirements, resulting in the property to be elevated higher than the abutting properties. Since the owner decided to alter the grade of the subject property, the determination of ground level in order to provide the overall height for the fence is subject to LDC Section 5.03.02.F. Le: "In measuring the height, the ground elevation on the side of the fence or wall location that is at the lowest elevation shall be used as a point from which the height is to be measured." In other words, the fence is a legal 6-foot fence as measured from the property owner's side, but higher than 6 feet as measured on the abutting properties. 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.' 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 recor°d evidence and testimony fi°om the pZrblic hearing reflects that then°e is an existing 5 foot public utility easement (P. U.E.) located in the rear of the t►vo adjacent lots. In order to meet neiv flood requirements, the subject property is elevated higher than the abutting lots. Other than that, no other special conditions and circumstances exist that are peculiar to the location, size, and characteristics of the land, structure, or building involved. 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 no, there are no special conditions and circumstances that r°esult from the applicant's action, such as pre- existing conditions relative to the proper iy, which is the subject of the variance request. 3. Will a literal interpretation of the provisions of this zoning code work unnecessary and undue hardship on the applicant ol• create practical difficulties for the applicant? The record evidence and testimony froin the public hearing reflects that yes, according to the LDC Sec. 5.03.02. C.2. b code hill only allow the owner• to install a 4- foot fence on the side proper ly lines. The home and property are at an elevation inhere the fence is too short to provide efficient privacy. 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 5 The record evidence and testimony fi°om the public hearing reflects that yes, the variance, if granted, will be the minimum variance that will make possible the reasonable use of the and. The owner had to elevate their yard for a newly constructed home on hvo adjacent properties side by side. A 4 foot fence Ti)ill not be tall enough to maintain privacy from the adjacent neighbors. The code allows a maximum 6-foot fence for the subject property; however, this becomes 8 feet when combined with the 2-foot retaining wall. A Opical 6- foot fence on the side property lines, in combination with a 2- foot retaining wall, and can 8 foot fence along the rear properly line, ivill make it possible for privacy. 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 and testimony fion2 the public hearing reflects that no, granting this variance ~-Hill not alloy-n a special privilege when compared to other properties in the same zoning district. Every residence in the RMF-6 zoning district is permitted to install a fence on their property cis needed. 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 fi°ona the public hearing reflects that yes, granting the variance will be in harmony with the intent and purpose of this zoning code and not be injurious to the neighborhood or otheri4dse detrimental to the public welfare. The 6 foot fence in the side yards and the 8 foot fence in the rear yard P. U.E. within property lines will not cause injury or harm to the neighborhood. It will also allow privacy for both adjacent properties as ivell cis the neighboring houses since the fence will be a uniform height all around. 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°om the public hearing reflects that no, building an 8- footfence on the original grade behind the hotase will not impact the goals and objectives of the regulation, Stich as natural preserves, lakes, golf courses, etc. It ivill remain within property lines and won't impact its surroundings. It will keep the fence at a uniform, consistent height, in line ivith the overall height of the fence on the sides of the houses. 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 granting this regulation would be consistent with the GNIP. The Urban Residential Subdistr°ict, according to the Future Land Use Element (FLUE), single family residential structures with accessories are permitted uses for the subject propert)). Page 3 of 5 GROWTH MANAGEMENT PLAN (GMP) CONSISTENCY. The subject property is located in the Residential Multi-Family-6 (RMF-6) Zoning District and the Urban Residential Subdistrict designated area as identified in the Future Land Use Map (FLUM) of the GMP. The GMP does not address individual variance requests but deals with the larger issue of the actual use. As previously noted, the subject petition seeks a variance for a privacy fence/wall for the subject property's use of a single-family home and an accessory swimming pool, which is an authorized use in this land use designation. This land use category is designed to accommodate residential uses, including single-family. The two single-family homes' use and accessories are consistent with the Future Land Use Map of the GMP. As stated, the applicant seeks a Variance for an 8-foot fence in combination with a retaining wall for the RMF-6 zoned subject property, which is an authorized land use. The Growth Management Plan (GMP) does not address individual variance requests related to land use. However, the current use and petition for the subject property is consistent with the GMP. 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-PL20240001659, filed by the applicant/owner Chris Moran, with respect to the property legally described as �0.38 acres located at 824 and 828 98th Ave North, also known as Lots 37, 38 and part of Lot 39, Block 64 of the Naples Park Unit 5 subdivision in Section 28, Township 48 South, Range 25 East, Collier County, Florida, for the following: ® A Variance from Land Development Code (LDC) Section 5.03.02.C.2.b to increase the required RMF-6 zoned fence height from 6 feet to 8 feet on the west and east side property lines and the south rear property line. Said changes are fully described in the Zoning Map attached as Exhibit "A", the Conceptual Site Plan attached as Exhibit "B", and the Retaining Wall Engineering Letter 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 — Conceptual Site Plan Exhibit C — Retaining Wall Engineering Letter LEGAL DESCRIPTION. The subject property is �0.38 acres located at 824 and 828 98th Ave North, also known as Lots 37, 38 and part of Lot 39, Block 64 of the Naples Park Unit 5 subdivision in Section 28, 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. No part of Petitioner's fence shall encroach on abutting property. 3. The installation of Petitioner's fence shall not cause any runoff or flooding on abutting property. 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. 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W ^nz� Qw0o 3t.• ��tttt�Y inLn ' d Ix pq m Y' L*awm F D WMl e a Z U - ' U �"G 82 k m �LMLJMIDA MARIIV= ENGIN�'cRING 6 CONSULTING Info@FloridaMarineConsulting.com • 239412-3247 • Naples, FL June 123 2024 RE: 824 & 828 98'h Ave —Retaining Wall Permit #: PRFW20240309750 & PRFW20240309748 Collier County Inspections #: 100 — Footings, 119 — Fill Cells, 115 — Building Final To Whom it May Concern, I, Julien Devisse, have inspected the retaining walls on June 6, 2024, for these homes as well as pictures from the owner showing the footers, rebar, block and poured concrete and certify the integrity of these walls. Based on the site inspection and photos, I determined that the retaining walls were constructed per 2023 Florida Building code and local ordinances. Below is a description and detail as to how the walls are constructed: • 3-courses stem -wall with CMU block, • Footer was installed with a 16" wide by 8" thick footer with (2) #5 rebar continuous. • Dowels are every 4' on center using # 5 rebar with a 10 hook, vertical dowels tied at top course, running (1) #5 rebar horizontal continuous. • There are (2) #5 corner bars at 30"x 30"at each 90-degree angle in footer. Top course of Stem wall also has (1) corner bar at each 90-degree angle. • All cells were filled full with 3,000 psi pump mix. • Each house will have approximately 168 linear feet of retaining wall After performing a site visit and reviewing the construction the retaining walls, I certify that the retaining walls were constructed in accordance with 2023 Florida Building Code. I agree to indemnify and hold harmless the County for the construction of the stem wall. Regards, * ; No. 77724 an& .a' STATE OF Julien Devisse, P.E. FM EC Digitally signed by Julien Devisse Date: 2024.06.12 03:49:41-04'00'