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Agenda 03/23/2010 Item #16A 4 Agenda Item No. 16A4 March 23, 2010 Page 1 of 22 EXECUTIVE SUMMARY Recommendation for approval of a perpendicular dock configuration and angled boat dock configuration for the Stella Maris subdivision in the Port of the Isles. OBJECTIVE: To obtain Board of County Commissioners (Board) approval for a perpendicular boat dock configuration and angled boat dock configuration for the Stella Maris subdivision. CONSIDERATIONS: In September 2009, the owner of a townhouse lot in the Stella Maris subdivision applied for a building permit to replace an existing boat lift constructed parallel with the shoreline. The proposed dock configuration is perpendicular to the shoreline. While reviewing the application, staff further discovered that numerous docks in this subdivision, zoned RMF-16, were built, without obtaining permits including State and Federal permits, inspections or Certificates of Completion from the County. The Stella Maris subdivision recorded in Plat Book 26, Page 27 of the Public Records of Collier County, is classified as multi-family development and subject to the Manatee Protection Plan (MPP). Section 3.2.3.4 of the MMP approved by this Board in 1995 provides: "Shoreline development within the seawalled basin at Port of the Islands will be restricted as follows... 2. Multi-family residential docks should be restricted by allowing only marginal wharfs along the waterfront of multi-family areas with no finger piers of"T" docks". The purpose of this section is to restrict the number of boats allowed. Some of the existing docks in the Stella Maris subdivision are parallel to the shoreline (marginal wharf configuration), some are perpendicular to the shoreline, and some are angled. The Stella Maris Homeowners' Association, Inc. (HOA) desires to bring its property into compliance voluntarily by obtaining an amendment to its Site Development Plan showing the docks and obtaining all other necessary permits, including Federal and State permits and County building permits. The HOA requests 1 slip for each of the 50 units, consistent with Land Development Code (LDC) restrictions for multi-family development, but asks that it be allowed to have the marginal wharf configuration, the perpendicular dock configuration and an angled boat dock configuration for up to 50 boat slips. The Stella Maris subdivision abuts over 2,000 feet of shoreline. Assuming an average boat Icn!,>1:h of 22 feet, a marginal wharf configuration would allow more than the 50 boats requested by the HOA and allowed by the LDC. Staff is supportive of the perpendicular dock configuration and angled boat dock configuration in this instance because (1) the number of docks will be limited to 50; and (2) existing parallel boat lifts are causing damage to the seawall to which they are attached. Staff believes allowing a maximum of 50 boat slips in the Stella Maris subdivision, regardless of configuration, is consistent with the intent of the MPP's goal of1imiting the boat slips in the Port of the Islands. However, staff seeks Board action to approve the perpendicular dock configuration and angled boat dock configuration. The Board previously approved a settlement agreement on September] 5,2009, Item 17E, which allowed angle parked boats secured by pilings for Sunrise Cay in Port of the Isles. FISCAL IMPACT: None for the County. Agenda Item No. 16A4 March 23, 2010 Page 2 of 22 GROWTH MANAGEMENT IMPACT: This request is consistent with the intent of the approved MPP by limiting the number of docks that can be constructed and therefore is supported by policies 7.1.2 and 7.1.4 of the Conservation and Coastal Management Element of the Growth Management Plan. These policies require the protection and conservation of wildlife. LEGAL CONSIDERATIONS: The Board has the authority to approve the perpendicular dock configuration and angled boat dock configuration, particularly since the Manatee Protection Plan states that the multi-family residential docks should be restricted rather than shall be restricted. This item is ready for Board consideration and approval. (HF AC) RECOMMENDATION: That the Board approve the perpendicular dock configuration and angled boat dock configuration for the Stella Maris subdivision in the Port of the Isles for existing and future boat slips and limit the total number of boat slips to 50. PREPARED BY: Heidi Ashton-Cicko, Section Chief, Land Use/Transportation and Susan Mason, Principal Environmental Specialist, Engineering, Environmental, Comprehensive Planning and Zoning Services 2 Item Number: Item Summary: Meeting Date: Agenda Item No. 16A4 March 23, 2010 Page 3 of 22 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 16A4 Recommendation for approval of a perpendicular dock configuration and angled boat dock configuration for the Stella Maris subdivision in the Port of the Isles. 3/23/20109:00:00 AM Section Chief/Land Use-Transportation Date Prepared By Heidi F. Ashton County Attorney County Attorney 3/9/20101 :14:35 PM Susan Mason Environmental Specialist, Principal Date Prepared By Community Development & Environmental Services Engineering & Environmental Services 3/9/20101 :14:35 PM Approved By Judy Puig Community Development & Environmental Services Date Operations Analyst Community Development & Environmental Services 3/9/20103:05 PM Nick Casalanguida Director - Transportation Planning Date Approved By Transportation Division Transportation Planning 3/9/20103:25 PM Approved By Heidi F. Ashton County Attorney Section Chief/Land Use-Transportation Date County Attorney 3/9/20104:43 PM Date Approved By William D. Lorenz, Jr., P.E. Community Development & Environmental Services Director - CDES Engineering Services Engineering & Environmental Services 3/10/20108:09 AM Approved By Date OMS Coordinator County Manager's Office Office of Management & Budget 3/10/20109:26 AM County Attorney Date Approved By Jeff Klatzkow 3/12120102:14 PM Approved By Management/Budget Analyst, Senior Date Mark Isackson Office of Management & Budget Office of Management & Budget 3/13/2010 9:57 AM Agenda Item No. 16A4 March 23, 2010 Page 4 of 22 STELLA MARIS Data Source: 2009 "8rla). Caller Courty Property Appraiser Created By cees OP8l'sUOI'lS, GIS/CAD Section cds-corrmomRoysIMaps\bn8_nd cds.-n-resoorces\lmagesl.1I\ aps&Aerlalslstellafll ariS.pg Data: 3f9'H) 45 90 180 270 360 Feet N A - - STELLA MARIS DalaSource: 2009 Aerial. CollerCoul't'/ Property Appral5er Created By eOES Operations, CIS/CAD Section cds-cQrnmnl.RoyslMapS\lJaoo.lTD(d ccts-n.-resoorcesllrnages\lrIIaps&A9r1ollslStellaMansSou\t1EndlPg Oall!: 3fQ'10 15 30 60 90 120 Feet N A Agenda Item No. 16A4 March 23, 2010 Page 5 of 22 STELLA MARIS DOCKS 11 Dock CO'D Permit 2003121526 Dock CO'D Permit 2003052618 Dock CO'D Permit 2003020103 ...... Dock:'\Jnperml~ed.:~I", :pennit2Q!i3Q32~3~.C~(;e11ed Dock CO'D Permit 2001012184/2004102738 253 Stella Maris Dr. S 257 Stella Maris Dr. S 261 Stella Maris Dr. S 2~~.~t~I!~,Ni8!is1?T;. S;: 269 Stella Maris Dr. S 27~ ~. 277:$ 281 Stella Maris Dr. S 285 Stella Maris Dr. S 2 Dock CO'D Dock CO'D Permit 2004042928 Permit 2000070347 2 3 305 Stella Maris Dr. S 309. 3\3Ste 317 Stella Maris Dr. S 321 Stella Maris Dr. S 325 Stella Maris Dr. S 329 Stella Mans Dr. S 333 Stella Maris Dr. S 338 Stella Maris Dr. S 338Siella Mans 334 Stella 330'Ste1ia 326 Ste11~ . ' 322 Sie11~. . 318 Stella Maris Dr. S 318 Stella Maris Dr. S.. 314 Stella Maris Dr. S 310 Stella Maris Dr, S, 306Stelili MansDf.S' 302 Stella Maris Dr. S 298 Stella Maris Dr. S 294 Stella Maris Dr. S 294 Stella: Maris Dr. S 290 Stella Maris Dr. S 286 Stella Maris Dr. S 282 Stella Maris Dr. S 278 Stella Maris Dr. S 274 Stella Maris Dr. S. 0, Dock CO'D Dock Dock Dock CO'D Dock CO'D Dock CO'D .... DockUripermitted Dock CO'D Dock CO'D Syoid Permit 2000032676/2003022599 1~9., 1010 Permit 2000081709/2004032690 Permit 2002122014/2009050671 Permit 1999110506/2002121947 ;,Perniit 200212201) ,void ** Permit 1999112264/2002100763 Permit 98011047 ** .erml nQ er pulled Dock CO'D Permit 1998110164 ..Replac(l Dock/no elec Permit 2006063651 Cancel Dock CO'D Permit 2006063647 " Do.ck Unpermitte it 9806.1584 Inspect '. . Do~k Uopermitt 't 98062072/200.4021461 Void Dock CO'D Permit 1998101444 ** DockUnpermitted. ... Permit 1999121021 Cancelled Dock CO'D Permit 1999031541 Unpermitted fe-cOnf. '" . Permit none pulled for reconfig. Dock CO'D Permit 2004032689 DockCO'D Permit 1998111014 Dock CO'D Permit 1999040962 Dock CO'D Permit 199906] 842 , Dock Unpermitted. '. . Permit 98050823 Cancelled ** ** denotes other permits that are open and not CO'D 270 Stel1a Maris Dr. S 266 Stella Maris Dr. S 262 Stella Maris Dr. S 258 Stella Maris Dr. S 254 Stella Maris Dr. S 250 Stel1aMaris Dr. S 246 Stella Maris Dr. S 239 Cays Dr. 235 Cays Dr. 231 Cays Dr. 231 Cays Dr. Agenda Item No 16A4 March 23,2010 Page 6 of 22 STELLA MARIS DOCKS CONTINUED Dock Unpermitted No Dock per sketch ** Dock Unpermitted Dock CO'D Dock CO'D Dock Unpermitted ** Dock CO'D Dock CO'D Dock Unpermitted Dock CO'D Dock Unpermitted Permit 960011723/2004101101 ** Permit 97091810 Cancel ** Permit 1998111003 ** Permit 970004455 ** Permit 97121077/2004111973 Void Permit 2005041380 Permit 97061125/2005041383 Permit 2004102734 Void Permit 98011452 Permit 2004040541 Void Where an address has been entered twice this indicates that a dock had been permitted and CO'D at one time. The second permit for either an uPl!rade or a replacement was never completed and the permit was either cancelled or voided for failure to meet the required criteria or inactivity. Information on Armv Corp. approvals for docks not available at this time. ** denotes other permits that are open and not CO'D 1/15/10 Agenda Item No. 16A4 A~:~~~~~ Page 1 of 16 EXECUTIVE SUMMARY This item requires that all participants be sworn in and ex parte communication disclosure be provided. ADA-2008-AR-14059, Sunrise Cay II Condominium Assodation Inc., represented by Christopher J. Thornton of Cheffy, Passidomo, Wilson and Johnson, LLP, has submitted an appeal ofthe deeIsion for INTP-2008-AR-12749. The appeUant has requested an appeal to the DIreetor's response in which the Director concluded that the proposed design submitted with the Interpretation request, depicting angle-parked boat parking with mooring pilings, is inconsIstent with the Manatee Protection Plan requirements at Sunrise Cay II. Through the appeal process both parties have crafted a proposed settlement agreement which Is comprised of a dock design with Umiting conditions. wherein It is the Director's opinion that the modification of the design plan and the proposed conditions meets the intent of the marginal wharf configuration requirements of tbe Manatee Protection Plan and Land Development Code. The agreement is being proposed for the Board of Zoning Appeals consideration and approval to reconcile tbe appeal request and comply with the requirements of the Manatee Protection Plan. The subject property Is located in Section 9, Township 52S, Range 28E, ColUer County, Florida. OBJECI'IVE: Pursuant to the County Codes of Laws and Ordinances, Sec. No. 250-58, the objective of an appellant's request is typically to seek a reversal of an official interpretation from the Collier County Board of Zoning Appeals (BZA), specifically (INTP-2008-AR-12749) as it applies to a proposed redesign and reconstruction of dock facilities for tbe Sunrise Cay II Condominiums located in Port of the Isles, in the Sunrise Cay Il development. However, fur this request the applicant and the County staff have agreed upon a settlement pursuant to the terms and conditions in the attached settlement agreement and are presenting it to the BZA for their approval. CONSIDERATIONS: The subject property has an RMF-16 zoning designation and contains a total of 42 residential condominium units with related accessories and appurtenances in 5 buildings that were constructed between 1996 and 1999, with approximately 973 linear feet of seawal1ed shoreline along the Sunrise Cay Canal and the Faka Union Canal. The Association has submitted applications to the Florida Department of Environmental Protection (file no. 11-0220350-001) and the V.S, Army Corps of Engineers (file no. SAJ-2003-9792) seeking permits for the construction of a reconfigured dock facility to consist of a total of 42 boat slips and a loading dock and ramp, with 36 of the boats angle-parked and secured by 38 pilings on 13-foot centers and 6 boats parallel-parked on the west side of the Faka Union Canal, On January 10, 2008, in accordance with Section 10.02.02.F of the Collier County Land Development Code, the applicants representative requested an official interpretation which included two separate requests, regarding the proposed reconfiguration of a dock facility and whether or not it is consistent with the Collier County Manatee Protection Plan (MPP) in particular: I) whether the Agenda Item No. 16A4 ~:Sf~~~~ Page 2 or 16 proposed use of mooring pilings to angle-park boat slips at the property of Sunrise Cay II is consistent with the MPP and, 2) whether the MPP permits a loading dock and access ramp immediately adjacent to the seawall at the property of Sunrise Cay II. The Appellant did not request to appeal the Director's response to the second request, in which the Director concluded that a shore-parallel, linear loading dock located immediately adjacent to the seawall would be consistent with the MPP. The Appellant agrees with the Director's response to request number 2. The Appellant is appealing the Director's response to request number] in which the Director concluded that angle-parked boat parking with mooring pilings is inconsistent with the MPP. The boats are currently parallel parked along the entire length of the seawall and secured with mooring whips. This current configuration is considered a marginal wharf. Under the proposed configuration, 36 boats would be angle-parked along the seawall and secured with pilings on 13- foot centers. The remaining 6 boats will remain parallel-parked as currently exist on the west side seawall. The applicant has agreed to limit the overall number of boat slips to a total of 42 slips. The proposed reconfiguration of the slips does not can for any structures in or above the water other than the relocated pilings and a proposed loading dock and ramp. Boat parking in a mooring configuration which results in boats perpendicular or angled to the shoreline is not considered a marginal wharf, consequently the official interpretation response with respect to the applicant's proposal to angle park boats was not approved by the Director. The intent of the requirement for a marginal wharf is to limit the number of boats and boat slips. After reviewing the appeal application it is the Director's opinion that the intent of the MPP could be met if the applicant and the County were willing to enter into a settlement agreement. The agreement would limit the number of boat slips to what currently exists on the subject site (42 slips) and limit the number of boats and the length of the boats (see attached settlement agreement and terms) specifically by limiting the number of docks to no more than what would be allowed by the application of the marginal wharf criteria as set forth in the official interpretation (AR-14058) and in doing so restrict any future construction of additional docks beyond 42 docks. This could be accomplished provided the Association is willing to agree that the total number of boat slips to be moored at the property under the current proposal will not exceed 42 and that the cumulative vessel length will not exceed 973 feet (not including the engines) and that the dock facility and loading dock and ramp configuration will be substantially the same as shown in the attached Exhibit "A". The applicant is willing to agree to this, in exchange for the County authorizing the construction of the boat dock facilities and providing such consistency letters and approvals as may be necessary for the construction of the facilities. Through the appeal process both parties have crafted the attached draft settlement agreement which is comprised of an alternative dock dcsign with limiting conditions, wherein it is the Director's opinion, approval of this proposal by the Board will mean that the intent of the marginal wharf configuration requirements of the Manatee Protection Plan will be met through development of the proposed design and associated conditions of approval within the agreement. The agreement is being proposed for the Board of Zoning Appeals consideration and approval to reconcile the appeal request and to en~ure the project complies with the requirements of the Manatee Protection Plan. Agenda Item No. 16A4 Agerill1lllrt~!l\o2cr1llE Septeriilllge1 S,dlCIW Page 3 of 16 In conclusion, the County's professional slaff has reviewed the applicants proposed dock configuration (Exhibit A) and has concluded that the proposed configuration with the limilations imposed by the terms of the attached settlement agreement meets the marginal wharf criteria of the MPP and is consistent with the official interpretation findings. FISCAL IMPACT: As a matter of infonnation the fee for this appeal is $1,000 plus advertising costs. Approximate staff time devoted to the processing and analyzing of this appeal request to date has been approximately 20 hours excluding the scheduled hearing. LEGAL CONSIDERATIONS: This item is quasi-judicial requiring ex parte disclosures and a simple majority vote. (STW) GROWTH MANAGEMENT PLAN IMPACT: The settlement agreement is consistent with the County's Growth Management Plan. RECOMMENDATION: Staff recommends that the BZA approve the settlement agreement. Prepared by: Susan M. Istenes, AICP, Zoning Dircctor Item Number: Item Summary: Meeling Pete: Ag'A,enda Item No. 16A4 ge~f!lwElj'~ft; Sept~ ~li. . 'P'age 4 of 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 17E ADA-2008-AR-14059 Sunrise Cay II Condominium Association Inc, represented by Christopher J. Thornton of Cheffy, Passidomo, Wilson and Johnson, LLP, is appealing the decision for INTP-2008-AR-12749. The applicant wishes to appeal the Director's decIsion in which the Direc10r concluded that angle..parked boat p.arking wIth mooring pilings is inconsistent with the Manatee Protection Plan specifically Sections 5.03.03. E.11 of the LOC and Sections 3.2.3.4 and 4.6.3 of the MPP to prohibit use of mooring pilings to angle-park boat slips at Sunrise Cay II Subject property is located in Section 9, Township 52, Range 28. Collier County, Flonda 9115120099:0000 AM Zoning & land Development Director Date Prepored By Susan Istelles, AICP Community Development & Environmental Service. Zoning & Land Development Review 8114120093:19:23 PM Date Approved By Judy Puig Community Development & Environmental Services Operation. Analyst Community Development & Environmental Services Admin. 8/171200911:31 AM Approved By Zoning & land Development Director Date Susan 'stene.. AICP Community Development & Environmental Services Zoning & Land Oevelopnwtnt Review 81181200910:44 AM Date Approved By Joseph K. Schmitt Convnunity Development & Environmental Services Community Development & Environmental Services Adminstrator Community Development & Environmental Services Admin. 8/18/200910:44 AM Environmental Service$ Director Date Approved By William D. Lorenz, Jr., P.E. Community Development & Environmitntal Services Elwironmental Services 811912009 9:14 AM Approved By Assistant County Attorney Date Swven Williams Attorney's Office Attorney's Office 8/2612009 4:18 PM Asslctant County Attorney Date Approved By Heidi F. Ashton County Attorney County Attorney Office 8/27120094:59 PM r.:1_. 1Ir".\ " __u ..J_-r__~'r'n_ ......, '''' of co _._"'____'- _..111 ~n, c III ....n~nnn\'., fl/.,n",'f n.,." ,. It. "'.fill ~^ "r".........r Agenda Item No. 16M Agen<M<itm Ml.2ll1W Septerfillrle1512G)~ Page 5 of 16 Approved By Jeff Klatzkow County Attorney County Attorney County Attorney Office Om 9/112001 3:53 PM Approved By OMB Coordinator OMB Coordinator 0.1e County Manager. Office Office of Management & Budget 91212009 9 :52 AM A pproved By Laura Davisson Management & Budget Analyst Office of Management & Budget c.'" County Manager's Office 9/212009 11 :31 AM Approved By Leo E. Ochs, Jr. Soard of Co unty Commissioners o,puty County Manager Dale County Manager'. Office 9/2/2009 6:46 PM A~nda Item No. 16A4 ~:~~~f~1 SETTLEMENT AGREEMENT AND GENERAL RELEASE THIS SETTLEMENT AGREEMENT (bereinafier referred to as the "Agreement") is made and entered into this _ of , 2009, by and between Sunrise Cay 1I Condominium Association, Inc. (the "Association"), and Collier County, Florida, a political subdivision of the State of Florida (the "County"). WHEREAS, Association is responsible for tbe operation and management of the property constituting Sunrise Cay II, a condominium, located io Port of the Islands, in Section 9, Township 52 South, Range 28 East, folio number 01067081401, within the unincorporated area of Collier County, Florida, as described in the Declaration of Condominium recorded in OR Book 2245, Page 1343, as amended (the "Property"); and WHEREAS, the Property is zoncd RMF-16 on the Collier County Zoning Map and contains a total of 42 residential condominium units with related accessories and appurtenances in 5 buildings that were constructed bctween 1996 and 1999, with approximately 973 linear feet of seawalled shoreline along the Sunrise Cay Canal and the Faka Union Canal; and WHEREAS, the Association has submitted applications to the Florida Dcpartmenl of Environmental Protection (file no. 11-0220350-00]) and the U.S. Army Corps of Engineers (file no. SAJ-2003-9792) seeking permits for the construction of a reconfigured dock facility to consist of a total of 42 boat slips and a loading dock and ramp, with 36 of the boats angle-parked and secured by 38 pilings on 13-foot centers and 6 boats parallel-parked on the west side o[the Faka Union Canal; and WHEREAS, on January 10, 2008, in accordance with Section 1O.02.02.F of the Collier County Land Development Code, the ASsociiitiOl1 submitted a request for interpretation to the Director of the Collier County Department4)f Zoning and Land Devetopment Review ("Director") seeking confU'lllation that the proposed dock facility and loading ramp configuration were consistent with the Collier County Land Development Code and Sections 3.2.3.4 and 4.6.3 of the Collier County ~anatec Protection Plan; and WHEREAS, on November 12, :W08 the Director issued a response to the Association's request for interpretation, INTP-2008-AR-I2749, which concluded that the proposed dock facility configuration was not consistent with the Manatee Protection Plan, but that tl1e loading ramp was consistent with the Manatee Protection Plan so long as the loading ramp was designed to be shore-parallel, linear, located immediately adjacent to the seawall, and was not used as additional mooring slips; and WHEREAS, on December 11, 2008 the Association filed an appeal of the Director's interpretation, ADA-2008-AR-14059, asserting that the proposed dock facility configuration and loading dock and ramp are consistent with the Land Developmcnt Code and Manatee Protection Plan; and Page] of 5 Agenda Item No. 16A4 Agen~Il:li'l1:No.2P/1f5l Septe/i\tlflfllO] 000'9' Page 7 of 16 W'HEREAS, as interpreted by staff, the application of the Land Development Code and marginal wharf critcria contained in the Manatee Protection Plan to the 973 feet of shoreline of the Sunrise Cay Condominium site would limit the maximum number of docking sites to 42 at an average length of23.2 feet; and WHEREAS, after revicv.ing the proposal, staff agrees that the provisions of the Land Development Code and the 'vlanatee Protection Plan are mct hy limiting the. number of docks to no more than what would be allowed by the application of thc marginal wharf criteria as set forth in the official interpretation (AR-14058) and in doing so restrict any future construction of additional docks beyond 42 docks; and WHEREAS, in order to resolve the appeal in ADA-2008-AR-l4509, the Association is willing to agree that the total munbcr of boat slips to be moored at the Property under the eUlTent proposal will not exceed 42 and that the cumulative vessel length will not exceed 973 feet (not including the engines) and that the dock facility and loading dock and ramp configuration will be substantially the same as sho"" in the attached Exbibit "A", in exchange for the County authorizing the construction of the facilities and providing such consistency lcttcrs and approvals as may be necessary for the construction of the facilities; and WHEREAS the County agrees that the proposed dock facility and loading dock and ramp will be consistent with the Land Devclopment Code and the Manatee Protcction Plan and will not endangcr the manatees provided that the total number of boat slips does not exceed 42. and the facilities are constnlcted in substantial conlnrmity with the plans attached as Exhibit "A"; and WHEREAS the Association and the County recognize that the interpretation and appeal could lcad to litigation between the parties, and that the costs and uncertainties of litigation and the unique facts and circumstances surrounding this matter and have agreed to settle any and all of the Association' s claims and any and all other claims, kno\\TI and unknown bctwcen the parties; NOW, THEREFORE, in consideration of the foregoing prcmises and the following mutual promises (the receipt and sufficicncy of such consideration being acknowledged by all parties), the parties agree as follows: I. Rccitals. The foregoing recitals arc true and correct and are incorporated herein by reference. 2. Denial of Liability. No party is admitting wrongdoing, fault. or liability of any nature by entcring into this Agreement. 3. Attornevs' Fecs. All panies shall pay their own attorneys fees and costs associated with this matter. 4. Release of All Claims as A~ainst the Countv. Except lor any brcach of tbis Settlement Agreement, the Association. hereby releases, acquits. satisfies. and forever discharges Page 20fS Agenda Item No. 16A4 Age rg,/ilI1'rel'JP20 flt Sept~1!1,~ P'age 8 of 16 the County, (including any and an cmployees, officers, directors, heirs, successors, assigns, legal representatives, attorneys and agents of the County) of and from any and an, and all manncr of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which the Association ever had, now has, or which any personal representative, successor, heir or assign of the Association, hereafter can, shall or may have involving or relating to the dock facility and loading dock and ramp, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of\he world to the day of this Agreement. 5. Release of All Claims as AI/ainst the Association. Except for any breach of this Agreement, the County, hereby releases, acquits, satisfies, and forever discharges the Association, (including any and all employecs, officers, directors, heirs, successors, assigns, legal representatives, attorneys and agents of the Association) of and from any and all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covcnants, contracts, controversies, agreements, promises, variances trespasses, damages, judgnlents, executions, claims and demands whatsoever, in Jawor in equity, which the County ever had, now has, or which any personal representative, successor, heir or assign of the County, hcreafter can, shall or may have involving or relating to the dock facility and loading dock and ramp, against the Association., for. upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of this Agreement. 6. Dock Facility. The county agrees that the dock facility and loading dock and ramp as shown in the attached Exhibit "A" are consistent with the Collier County Land Development Code and Manatee Protection Plan, to approve the construction of the dock facility and loading dock as specified in the attached Exhibit "A", and to issuc permits for construction of the same upon application by Association, and receipt of all required agency permits. TIle County further agrees to communicate its approval and consistency letters as necessary to the U.S. Fish and Wildlife Service and any other applicable govemmental agencies within scvcn (7) days of the date of this Agreement. The Association agrees that the dock facility shall be limited to a maximum of 42 boat slips and the loading dock in the configw-ation shov,'I1 in the attached Exhibit "A". The Association further agrees that the cumulative total length of the vcssels to be docked at thc facility, not including the engines, shall not exceed 973 feet. 7. Execution of Other Documents, The parties agrec that they will execute any other documents as are necessary to effectuate or to carry out the in1ent of this Agreement. 8. Governing Law and Venue. This Agreement and all other documents executed in connection with this Agreement shall be governed by and interprcted under Florida law. The sole and exclusive venue for any litigation between the parties arising out of or relatcd to this Agreement or any documents executed in connection with thi s Agreement shall be in the circuit Court in and for Collier County, f1orida. The Settlement Agrcement is the joint product of the Association and the County and shall not be construed against either party as the drafter. Page 3 of 5 Agenda Item No. 16A4 AgenMcltQfu:Nb2fl7lel Septefilollt>1'5i 0tJW Page 9 of 16 9, Enforceability. In the event that any provision of this Settlement Agreement is found to be void or unenforceable by a cmm of competent jurisdiction, the remaining provisions, in whole or in part, shall continue to be enforceable to the greatest extent allowed by law and to the same extent as if the void or unenforceablc provision were omitted from this Agreement. 10. Entire Settlement Ae:reement. This Agreement contains the entire agreement between the parties and all prior or contemporaneous negotiations or representations are mcrged into this Settlement Agreement. This Settlement Agreement may not be amended or modified except in a written document signed by the parties. 11. Execution. Association shall execute this Agreement prior to it being submitted for approval by the Board of County Commissioners. 12. AppJicabilitv, This Agreement shall be binding on Association's successors, heirs, and assigns. Further, this Agreement shall be binding on the Association's successors, heirs, and assigns. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. Attest: DWIGHT E. BROCK, Clcrk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: By: DONNA FIALA, Chairman . Deputy Clcrk WIITNESSES: AS TO ASSOCIATION: SUNIUSE CAY [J CONDOMINIUM ASS. CIA TlON, INC. / ,'7 /;;:l.,? L---+ _ Print Name: (!f,.-/! T/{,r".1-,'/...J ~/?rn-H"'-/~'~ ~~. PrintName)/I12:,i", j )11.0' - Wp:.J::... By: xf~') lfn, V Q<L:6~4J ~pproved by Susan M. Istencs. AICP.loning Director Page.. of 5 Aqenda Item No. 16A4 Agenlill!J~P2()1'5 Sept~ ,~~ Page 10 of 16 STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this :J'IIAiay of tlLt.~' j . 2009, by Ovidio C. Giberga, as President of Sunrise Cay II Condominium Associatio , Inc., who is personally known _ \0 me or has produced rL Dr"/t:/~ LI<:eI1~f' ~ as identification. G I.:..! v";.3 'f S' ""',c.,#, 6 WITNESS my hand and official seal this .:2 'f /I, day of ~.,,j l , 2009. YJ1 (:l...~ X. /3rAA-vLl' Notary Public Notary Rubber Stamp Seal Or Emb I MAR1ltA L IlENEIT MY CQllMlSSlON . DO 831583 EXPJRES: _17. 2013 BanOec1ThruNlUryPubkUnOl!fWlIIer1 M ,,-.' -II.... t. Printed Name I.NJ ~'3'158 3 Commission No. 13~ .. 17(' ;-1 '5' /17 /.J. C! I ~ Expiration Date Approve as to orm An11; ~ffi"'~" t:~ A LKO L-tt.~e ey A. Klatikow W - County Attorney Page 5 of5 UJ'" r--O _0 .N ) . .~~ E- W'" _.0 -E "'", 'C _ co. w'" ~(f) l! :;:) :;:: _ O:c: g~ 0 ':::t :c: ':::t .... g~ ~~ ,,~ ~S r:~< I~I-I ~--I -', I r-' U' S1: II ~ 1 I II ~ I I It ~ w J I l!(l g; "'N I 0;' I!!!I it ~. I~ ~: I" ;.. l;;j ~ ...J L:td~ ~ ~ ,']-.:".. ;3 c. I~ ). ~.- ~ .'\ ~ ..)A ~ .~ I . ::;, .<;.. 1 I '" ~~ I 5~ I ~...: Ij ;;- I fa <'/l7.i $1/. l~.., ~ "'/. I ~'; ~ ,>. (fj! ~ 't. : ~ w %: I ~ ~~ ~.Pl.1 ~ f~ "U 1 ,1'.....11 t?~ I I <.~ ~~ I I ~h' ;.1 ~~ -Ii':"! 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I / .--,/ -.--:;'----- >- ~ ll: ~ ~ ....1::::: >->- <::(1<::( uo UJll1.I ClJICIJ [t1Q:: 5i~ Cl)ICIJ I ~ ~ ~ ~ .'- II: ~ ~ ... i c: r i 8 :1 - * ~ ~ ~ ~ ~ C\ >- () Cl:: ~ CIJ t!) <: ~ ~ UJ >- ~ U llJ (jJ - ~ Z J (f) 0- o n:: 0- I- :::;l ~ < o I,; '4 ,. ~n~ 1.;8 ~~. 11 ill -;z ei,l hI _!:. '" ~ , ' , ~ " ~~ j'.1 ~ Agenda Item No 16M Agertdllrrwril:N~~1j(E Sept~ ~15,o:!!AAl Page 12 of 16 ~ COLLlliRCOUNTYGOVERNMENT CommuDlty Development and Environmental Services Division Department of Zoning and Land Development Review 2800 North Horseshoe Drive. Naple., Florida 34104 November 12, 2008 Mr, Christopher J. Thornton Cheffy, Passidomo, Wilson &. Johnson, P,A. 821 Fifth Avenue South, Suite 201 Naples, FL 34102 RE: INTP-2008-AR.Jz'749, Request for omclal interpretation of Sections S.03.06.E,1I and S.05.02.C of the Collier County Land Development Cude (LDC) to determine whether or Dot the use of mooring pilings to aDgle park boat slips is allowed and is consistent with the Manatee Protection Plan (MPP), and whetber the proposed loading dock with BCCelIS ramp b consistent with Sections 3.1.3.4 Bnd 4.6.3 of the MPP, Dear Mr, Thornton: Pursuant to Land Developm~~tCcide <iDe) Section IO.02.02,F. you havc:asked the Zoning and Land Development ,Review Director to. render an official interpretation for two (2) separate requests pertaining to various pro'visions of the Manatee Protection Plan and the applicable provisions of the LDC as noted above, In your request, you indicate that the Sunrise Cay II Condominium Association has submitted applications to the Florida Department of Environmental Protection (File No. 11-0220350-001) and the U.S. Anny Corps of Engineers (File No. SAJ-2003-9792) seeking permits for the construction of II rcconfigured dock facility of an existing 42 boat slip facility. These slips are currently parallel-parked along tbe entire length of the sea wall and secured with mooring whips. Under the proposed configuration, 36 boats would be angle-parked along the seawall and secured with pilings on l3-foot centers. The remaining 6 boats will remain parallel-parked as currently exist on the west side seawall, You also indicate t/ult the overall number o[boat slips remains at 42 slips in total and that the design of the existing live foot wooden boardwalk serving the boat slips will not change. Lastly, the proposed reconfiguration of the slips does not call for any structures in or above the water other than the relocated pilings and a proposed loading dock and ramp. For the purpose of this interpretation, you /ulve not requested a determination concerning the subject site's ranking under the marinll siting criteria contained in Section 5.05.02,C of the LDC and Section 3.2.4.1 of the MPP. . , . ' In Request I, you asked whether or not Sections 5. 03; 06. E.ll of the LDC and Section 3.2.3.4 and 4.6.3 of the Manatee Protection Plan (MPP) permits the llSe of mooring pilings to angle- park boat slips as proposed by the Sunrise Cay II Condominium Association, Ine. c l~~ c Phone (239) 252-2400 Pax (239) 252-6968 or (239) 252-2913 EXHIBIT~ 'Vw\v.co11iergov.nCL Agenda Item No. 16M Agenljaa~ ~.2tfflJ Seple~1~2JlJ~ Page 13 of 16 Mr, Christopher J. Thornton November S, 200S Page 2 of4 Basc:d upon my review of Section S,03,06.E.11 of the LDC, it is my opinion that multi-slip docking facilities with ten (10) or morc slips are permitted on the subject site but the docking facilities are required to be reviewed for consistency with the MPP that was adopted by the Bee and approvc:d by the Department of Environmental Protection (DEP). Although the LDC doesn't define the term "mooring pilinga", Section 5.03.06 of the LOC Iislll mooring pilings as an allowable use on waterfront property as well as individual or multiple private docks. In addition, pilings are deemed to be a component of a dock facility, A dock filcillty can include a walkway, pier, and pilings associated with the dock. Furthermore, SectioDS 3,2.3.4 (2) and 4,6.3 (2) of the MPP apply to the subject RMF -16 zoned property since the site is developed with multi-family dwelling units on a canal with a seawall, These provisions restrict shoreline development within the sea walled basin at Port-of-the-Islands as fo1\ows: . Multi-family residential docks should be restricted by a1\owing only ~ ~ along the waterfront of multi-family areas with no fmger piers or ",.., shaped docks allowed. In your application, you contend that because this provision of the MPP uses the pennissive term "should" instead of the mandalory "shall", the language of the rule (given that it is nol mandatory) should not be used to determine if the proposed dock facility configuration is consistent with the MPP. However, it is my opinion that these sections of the MPP were clearly intended to apply to the subject property since they indicate that the "shoreline development" restrictions are to apply "within the seawalled basin" and "within the manatee sanctuary" areas of Port-Qf-the-Islands. Therefore, the intent of the MPP is to e"c1udc the finger piers, "T" docks, piles and floating docks but allowing only marginal wharves within the Sunrise Cay II development. While the LDC and OMP, as well as Sections 3.2.3.4 and 4.6,3 of the MPP, don't define or provide development standards for a "marginal wharf", there is an industry accepted definition that has been historically applied to the subject site for consistency with the MPP. This definition ofa "IIllIl'gimd whu.rf' is as follows: ManriDa1 wbarf: A wharf that is flush (parallel) with the general adjacent shoreline with boats (ships) docked end to end, It is a landing place where ships may tie up and load or unload passengers and supplies. Based on this definition, it is my opinion that the proposed configuration for angled-parked boat slips along the marginal wharf and secured with pilings, on l3-foot centers, is not consistent with the intent of the MPP, It is also my opinion tbat the proposed marginal wharf can not include any f1118er piers or "T" shaped docks or loading ramps. In Reqllest 11, you asud whether or not the propolied 10000ing dock with acct!S1i ramp or a Iihon-paralJel, ltllellr IOtJding iWck located im1nt!diately adjncent to the lieawaU or _rginal wharf lire consistent with Sectwns 3.2,3.4 and 4.6.3 01 the Manatee Protectwll Plan 7 ,.:j Agenda Item No. 16A4 AgenMilfllmEI,<jp2ClfEt Sept~ ~O,~ Page 14 of 16 Mr. Christopher J. Thornton November S, 2008 Page 3 of4 In your request, you indicate that the proposed 1000ini dock and ramp is to only be used for temporary loading and unloading of people and supplies, and is necessary for the safety of the boaters whether the boats are parked parallel to the seawall and secured with mooring whips or parked at an angle and secured with pilings. In order to pMvent boaters from having to leap from the boat to the seawall during high or low tides, the Sunrise Cay II Condominium Association socia to COIIJtruct a floating dock with an access ramp to improve the safety of the members of the Association when accessing their boats. Based upon my review of Section 3.2.3,4 of the MPP, the multi-family residential docks ~ be restricted by allowing only manzinal wharves along the waterfronr of the multi-family areas with no finger piers or "1'" shaped docks allowed. As depicted on Exhibit "F" of your application. YOID' proposed design for the loading dock and ramp consists of a 10 foot by 7 foot platfonn that protrudes into the canal ami includes a 4 foot by I S foot long ramp that connects to a 36 foot long "L" shaped floating dock. Since the proposed loading dock with access ramp is a permanent structure attached to piles, it is deemed to be a part of a marginal wharf. The design of the structure in this ClllIe, in my opinion, is not consistent with definition of a marginal wbarf since it protrudes out into the canal similar to the way a "T" or "U" shaped dock would protrude. Also, the proposed loading dock is not designed to be built parallel to the marginal wharf or the shore of navigable waters, . In regards to the alternate design that you proposed in the addendum to your application, you inquired if a shore-parallel, linear loading dock located immediately adjacent (parallel) to the seawall would be consistent with the MPP provision as noted above. Based on my conclusions j..- above, one could apply Sections 3.2.3.4 and 4.6.3 of the MPP to allow a shore-parallel, linear ""'t- loading dock as long as it is located immediately adjacent to the seawall. It is my opinion that this limitation is consistent with the intent of the marginal wharf and includes those loading dock structUml built on flotation devices ~ to keep them at the same level of the ship even during changing tides." It should be noted that the use of shore-parallel loading sba1J not allow more boats to be docked than is currently allowed. Any shore parallel loading dock is jUSl for the ease of access to boats and OIIIUIot be used as extra mooring. Pursuant to Division 1O.02.02.F. of the LOC, this interpretation ha~ been sent to you via certified mail, return receipt requested. As this is a site-specific interpretation, all property owners within 300 feet of the subject property will receive mail notice and a copy of this interpretation and appeal time frames will be placed in the Naples Dailv News, Within 30 days of receipt of this letter, or within 30 days of publication of the public notice, any affected property owner or aggrieved or adversely affected party may appeal the interpretation to the Board of Zoning Appeals (BZA). A request for an appeal must be filed in writing and must state the basis for the appeal and include any pertinent information, exhibits, or other back-up infonnation in support of the appeal, The appeal must be accompanied by a $1.000.00 application and processing fee, If payment is in the fonn of a check, it should be made out to the Collier County Board of Commissioners. An appeal can be hand delivered or mailed to my attention at the address Agenda Item No. 16M A~:'rW~~m Page 15 of 16 Mr, Christopher J. Thornton Novembor S, 2008 Page 4 of4 provided, Please do not hesitate: to contact me: should you have any further questions on this matter, Sincerely, ~'fYl,~ Susan M. Istc:nes, Alep, Director Department of Zoning & Land Development Review Cc: Clll:ic:rCount)i 80ard oi County Commis~ioners Collier County Planning Commission James V. Mudd, County Manager Joseph K. Schmitt, Administrator, Comm, Development & Bnv. Srv. Div. Jeff Klatzkow, County Attorney Ray V, Bellows, Zoning Manager. Department of Zoning & Land Dev. Rev, ~ZF Sunday, August 30, 2009 ". 10128 .Uf' . NOTICE 'OF pualc HEARING 0120'.. . ".E1II:' Notice Is hereby a/ven thet tllll Board of County comr,ISSfonetl' Of eollllr COU~ will hold a public ~~~ l~a= tf..:c.T.g;.~.~:~ ~ IIer COUntY Government c.ar. 3301 Edt T.",WnI ~:ll:~Pl... Florida. Tile mlltlng ~nl begin at Petition: AOA-ZCJ08.AR-14059. 5unri.. eailll Condd- mlnlum A"ocl~,on dt::it,,"="nted ~ Christo-. f~~~n.~J"l:u ~bmrtn~ an:=' ott"d:: sldn lor INTP.Z_AR-IZ74l1, Till apP.."lIant has re- quested an appHl to the Director s rllpon'"ln which the Director concludld that the propaua. de.11ln .ubmlttecf with the Interpretallo~ ~ odNr.=ng f=;=~ wt'~~~t~, ~Ian requlremlnts It Sunrlle ~ n. 'I'tliriugll the appeal proce.. both pertles lIavI craE\jl . r=. ":'"'::"::b&Cj=r- co~m:.~' 'e:" "It~ the Dlrecto'. opinion th': thl modl~ ,of the cIellgn plan .and the propoeed condhlo", mHb the Intent Of the maralnal Whuf contIau!1ltlOl'l ftlqUlre- monts of the 'Manatee Protllctlon Pl"en. and LanG De- ""Iopment COda. The agreement I. being JII1Ipohd for the Soard Of Zonlnli All_I. consl_lon end epproyej to reconcile the _I r",ueet and com- fJlY with the r""ulrements or the Manet.. Protec- tlg~ ;~"r".;W~I:t'e~ .r.r:::1lIt Igg:rf:;l ~~:. Florida. . NOTE: "II Persons wishing to sPHl< on lilY _nd& Item mu.t register with the COul)ty "dmlnlslretor prior to p.....ntatlon of thl lIIIeI'\da Item to be ad- dressed. Individual slll8lctirs will be limited to 5 . mlnU118S on ~ Item. The selectton of an Individual to speak on behalf of an Ol'll8nlza, tlon or aroup. Ilss I enCOUl1l~, If I"IC09I1Ized I!Y the Chair. a IpOICno ro~utes t~ ~~o"~ =.zatlon' ~ be allotted Persons wlshll)g to ha... written .or g....l1Ic materI- als Included In the Board aUlnda packets must submit said material a minimum of 3 WIlles prior to the. resptlCtlve public I1aerIng. In any. c...... written mat,,"als Intorided to b. consld.red by the Board shall be submlttld to thl approprlllle Co'l'm' staff · minimum of...."", days prfor to the P\lbllehllar- Ing. I.JI material used In preslntatlons before the Board will become a ...../IlIInent part of the record. :~ lo~3nwi'i'lh~e~1~~~;g..sP!t.~ea p:~~rn:! p~~al~a i~.';.'I,~~ndre=m":'~O:I~er; made. which. record Includ.s tbe felltlmony and evidence upon wllich the appoall. baled, ~~g::.~':lo"nr'i~''.,= 'lod=~n~:::' ~~~I~n~ =..~~ 'i.m: lo":t.~ 3: ~od~~dc:~n3lJnfa~~~~~rr:l\"r:.~ ~~~~ /lap"", Florida :l41U. (239)252-8380; assisted llratr." :~t:d'.l:.t ~~~=~, =,red are avaflab e . SOARD OF COUNTY COMMISSIONERS COLUER COUNTY. FLOR,IDA DONNA FIALA. CHAl RMAN , '~~FC~c_- AIKlt,d" ~n ,~ " , , . ' . h1n'ianm; Agenda Item. No. 16A4 Agenlitllll1iJJrQ~o211J1E1 . Septe~ m.~ I, ' Page 16 of 16 Baily. -awl