HEX Final Decision #2025-36HEX NO. 2025-36
HEARING EXAMINER DECISION
DATE OF HEARING.
September 119 2025
PETITION.
Petition No. VA-PL20240001811 — 239 Bayfront Drive -Request to reduce the required
Front Yard setback from 27.83 feet to 12 feet and to reduce the required Rear Yard setback
from 30 feet to 27.07 feet for a single-family residential dwelling pursuant to Sections 10.5.B
and 10.5.F of the Lely Barefoot Beach Planned Unit Development (PUD), Ordinance 7748,
As Amended, for property located at 239 Bayfront Drive in Section 06, Township 48 South,
Range 25 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
To have the Collier County Hearing Examiner (HEX) consider a variance request to reduce the
required Front Yard setback from 27.83 feet to 12 feet and to reduce the required Rear Yard setback
from 30 feet to 27.07 feet for a single-family residential dwelling pursuant to Sections 10.5.B and
10.5.17 of the Lely Barefoot Beach Planned Unit Development (PUD), as per Ordinance 7748, as
amended, to allow for the construction of a new single-family dwelling.
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 Code 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 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 public speakers at the hearing.
Page 1 of 6
5. The Countys 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 from the public hear°ing reflects that the applicant's
expert stated that, "Yes. The request is intended to accommodate the environmentally
sensitive area and narrow lots. At its absolute widest point at the northeast corner of the
Property, including overhangs, the proposed home is just over 40' wide. Where the
Property narrotivs at the southlvest corner, the proposed home is less than 18' wide. The
PUD Ordinance for the Property governs setbaclfs based on height cis well. However, in
2017, the PUD regulations were updated to permit three (3) habitable stories versus the
taro (2) habitable stories permitted prior. Such increased height allows for more resilient
development, but in turn, increases the setbacks for new development in the community
compared to those homes developedprior to the 2017permitted height increase. Therefore,
the requested variances are intended to address the unusual and narrow shape of the lot
paired with the increased height to allow for the development of a single family dwelling
unit that is consistent ivith the community and area. With respect to the rear yard, there is
cin environmentally sensitive area between the proposed building footprint and the water
body. These sensitive environmental conditions prohibit the installation of a pool and
customary outdoor living areas to the rear of the structure. As a result, these amenities
have been designed to be elevated, necessitating a taller overall structure to accommodate
the habitable area within the dwelling unit. Due to the resulting increased height, the
required setbacl(s have also increased. As such, the variances requested would alloiv for
setbacks that are consistent lvith the existing development, while alloiving for more
elevation of the structures on the Pr•opert)). "
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 the applicant's
expert stated that, "Yes. The lots were not created by the o�nner, nor did the owner create
the environmental conditions that necessitate the need to elevate the pool away from said
lands. The narrow lot dimensions (discussed above), made more restrictive by the presence
of environmentally sensitive lands (also discussed above), necessitate the variance. The
Applicant did not create those conditions. " County staff concurred
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?
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 stated that, "Yes, a literal interpretation of the provisions of the LDC would confer
an undue hardship on the Applicants and create numerous practical difficulties. Literal
interpretation of the Code would create undue hardship by either eliminating typical
residential features, such as the pool and/or bedrooms, to accommodate the more
expansive setbacks imposed based on height. Conversely, the approval of the variance
would allow for the development of the structure in a manner that is consistent and
harmonious with existing development in the community, with no deleterious impacts on
the general health, safety and welfare. " County staff concurred.
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 from the public hearing reflects that the applicant's
expert stated that, "Yes, the two (2) requested variances are the minimum variances that
hill make possible the reasonable use of the Property. As demonstrated on the site plan
and dimensional floor plan, the Applicant has proposed a four -bedroom home that would
contain. approximately 4,600 sq. ft. of habitable area (under air), which is reasonable for
the community and surrounding area. The lanais and pool are also customary) residential
features in both the immediate neighborhood and surrounding area. Thus, the variances
requested, would allow for the development of the Property in a manner that is consistent
and harmonious lvith the area, which in turn promotes health, safely, and welfare. Absent
the variances, the structure could not be as tall as currently proposed, although the
proposed height is permitted by right. The loss of height ivould, in turn, result in the loss
of bedrooms (likely hvo (2) bedrooms of the four (4) proposed), thus making unreasonable
use of the Property. Thus, the variances requested are the minimum to make reasonable
use of the Property. " County staff concurred.
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 from t17e public hearing reflects that by definition, a
Variance bestows some dimensional relief fi°om 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 ftom the public hearing reflects that the applicant's
exper°t stated that the var°fiance will facilitate a new home that is in harmony �-vith the
Page 3 of 6
general intent and purpose of this Land Development Code, and not be injurious to the
neighborhood, or otherwise detrimental to the public ivelfare. Specifically he stated "The
variance would allow the property to be developed in the same manner as other nearby
structures, retaining a consistent and harmonious scheme of development within the
neighborhood and surrounding area. The location of the waterbody offsets impacts to
property owners across the waterbody. The waterbody appears to be approximately 110'
wide at that location, so this additional separation bets -veep rear yards offsets any impacts
to property owners that may have other -vise resultedfrom rom the decrease in rear yard. In the
same vein, the parcel located across f tom the subject property is a preserve area owned
by the Bajfront Gardens Association. As such, there are no dwellings or other uses across
Bayfr�ont Dr. that 11vould be adversely impacted by the decreased front yard area. The
decreased front setback would also not obstruct visibility from Bayfront Dr. and therefore
would not be injurious to drivers. This is evidenced by the minimum required frgont setback
of 10'. as well as other similarly situated properties in the neighborhood.. " County staff
concurred
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 the applicant's
expert stated that, "Yes, there are conditions on this Property) which ameliorate the goals
and objectives of the zoning code and other regulations, including the preserve across f °orn
the Property and the iaterbody to the rear of the Property, as discussed above. Each of
these features mitigates the goals and objectives of the codified setbacks, as they provide
additional buffers behimen the Property) and other potentially affected homes. " County)
staff concurred
8. Will granting the Variance be consistent with the Growth Management Plan (GMP)?
The record evidence and testimony from the public hearing reflects that the applicant's
expel°t stated that, "Yes, gr anting this variance be consistent V-1 nagement
Plan. The Property is located in the Urban Residential Subdistrict. The Future Land Use
Element of the Growth Management Plan provides that the purpose of the Urban
Residential Subdish4ict is to is to provide for higher densities in an area with felver natural
resource constraints and where existing and planned public facilities are concentrated.
This Subdistrict comprises approximately 93, 000 acres and 80% of the Urban Mixed Use
District Maximum eligible residential densio) shall be determined through the Density
Rating System, but shall not exceed 16 dwelling units per acre except in accordance with
the Transfer of Development Rights Section of the Land Development Code. The variance
will not increase density over what has previously been approved and will alloti-v for the
construction of a single family home in a subdistrict that calls for higher densities. " Staff
concurred.
GROWTH MANAGEMENT PLAN (GMP) CONSISTENCY.
The record evidence and testimony from the public hearing reflects that the subject proper o) is
located Within the Urban Coastal Fringe Subdistrict of the Urban Mixed -Use District on the
County's Future Land Use Map (FLU" of the Future Land Use Element (FLUE) of the GMP.
The GMP does not address individual Variance requests but deals lvith the larger issue of the
actual use. The proposed single family use is consistent tit)ith the FL UM of the GMP. The GMP
does not address individual variance requests; the Plan deals tinith the larger issue of the actual
land use.
ENVIRONMENTAL ADVISORY COUNCIL (EAC) RECOMMENDATION.
The record evidence crud testimony from the public hearing reflects that the EAC does not t��piecrlly
hear variance petitions. Since the subject Variance doesn't 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 this Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-PL20240001811, filed by Amy S.
TmDaut, Esq, of Roetzel & Andress LPA, representing the owner/applicant 239 Bayfront LLC,
with respect to the property legally described as located at 239 Bayfront Drive; see Attachment A
for the full legal description. It is situated in Section 6, Township 48 South, Range 25 East, Collier
County, Florida, for the following:
• A Variance request to reduce the required Front Yard setback from 27.83 feet to 12 feet
and to reduce the required Rear Yard setback from 30 feet to 27.07 feet for asingle-family
residential dwelling pursuant to Sections 10.5.13 and 10.5.F of the Lely Barefoot Beach
Planned Unit Development (PUD), as per Ordinance 7748, as amended, to allow for the
construction of a new single-family dwelling.
Said changes are fully described in the Proposed Site Plan attached as Exhibit "A", the
Construction Plans attached as Exhibit "B", and the Sketch of Survey attached as Exhibit "C", and
are subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A —Proposed Site Plan
Exhibit B —Construction Plans
Exhibit C — Sketch of Survey
Page 5 of 6
LEGAL DESCRIPTION.
The subject property is located at 239 Bayfront Drive; see Attachment A for the full legal
description. It is situated in Section 6, 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.
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.
September 15, 2025
Date
Andrew Dickman, Esq., AICP
Hearing Examiner
Page 6 of 6
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