Agenda 03/24/2020 Item #17D (Resolution - Petition PL20180003748)03/24/2020
EXECUTIVE SUMMARY
This item requires ex parte disclosure be provided by the Commission members. Should a hearing
be held on this item, all participants are required to be sworn in. Recommendation to approve a
Resolution of the Board of Zoning Appeals of Collier County, Florida, relating to a variance
request from Section 4.02.01 A., Table 2.1 of the Collier County Land Development Code to reduce
the minimum side yard setback on the west side from 7.5 feet to 4.71 feet for an existing pool. The
property is described as Lot 1 and the east half of Lot 2, Block 28, Naples Park Unit No. 3, also
described as 699 99th Ave. N., in Section 28, Township 48 South, Range 25 East, Collier County,
Florida. [PL20180003748]
OBJECTIVE: To have the Board of County Commissioners (Board) review staff’s findings and
recommendations along with the recommendations of the Collier County Planning Commission (CCPC)
regarding the above referenced petition, render a decision regarding this rezoning petition, and ensure the
project is in harmony with all the applicable codes and regulations in order to ensure that the community's
interests are maintained.
CONSIDERATIONS: The subject property is described as Lot 1 and the east half of Lot 2, Block 28,
Naples Park Unit No. 3, also described as 699 99th Ave. N., in Section 28, Township 48 South, Range 25
East, Collier County, Florida, consisting of 0.27±. The petitioner is requesting to have the Board consider
an application for an after-the-fact variance from Section 4.02.01 A., Table 2.1 of the Collier County
Land Development Code to reduce the minimum side yard setback on the west side from 7.5 feet to 4.71
feet for an existing pool in the Residential Multi-Family- 6 (RMF-6) zoning district.
The subject property is located within the Naples Park Subdivision. Per the current Land Development
Code (LDC), single-family dwellings shall have a 7.5-foot side yard accessory setback. The Woodyards
purchased the subject property on November 12, 1996. In 2006, the owner contracted with Berube Bros
Inc. to construct a pool and pool deck on the property under permit# CDP2006100432 issued on October
5th, 2006. The contractor obtained the permit the next day and proceeded with the work but never called in
the final inspection and thus the permit expired on April 11th, 2007. The owners were not aware of the
issue until September of 2017 when the owners had the property appraised in anticipation of a sale of the
property.
It shall be noted that the pool and the deck are encroaching into the setback. Per LDC Section 1.08.02, the
definition of a yard is “An open space that is unoccupied and unobstructed, and that lies between a
principal or accessory building or buildings and the nearest lot line. As used in this definition,
"unobstructed" means a structure or portion of a structure from 30 inches above the ground level upward
and does not include permissible fences and walls.” Moreover, per LDC Section 4.02.01(D)(3), “Every
part of every required yard shall be open and unobstructed from thirty (30) inches above the general
ground level of the graded lot upward to the sky except as hereinafter provided or as otherwise permitted
in this LDC.” As such, per these definitions, it is the opinion of staff that the pool deck is not subject to
meet setbacks as the highest point of the deck is 12 inches and is under the 30-inch threshold; therefore,
the deck is not subject to this variance.
In this case, the pool shell encroaches 2.79 feet into the setback. As such, the variance for this petition is
being requested at 4.71 feet from the side property line. There have been other variances granted within
this neighborhood for similar situations, and none have been injurious to the neighborhood or detrimental
to the public welfare. This pool and deck encroachment have been in existence for nearly 14 years. To
date, no known complaints have been received from any neighboring properties in regard to this pool and
deck.
17.D
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03/24/2020
FISCAL IMPACT: The variance by and of itself will have no fiscal impact on Collier County. There is
no guarantee that the project, at build-out, will maximize its authorized level of development. However,
if the variance is approved, a portion of the land could be developed, and the new development will result
in an impact on Collier County public facilities.
The County collects impact fees prior to the issuance of a Certificate of Occupancy to help offset the
impacts of each new development on public facilities. These impact fees are used to fund projects
identified in the Capital Improvement Element of the Growth Management Plan as needed to maintain the
adopted Level of Service (LOS) for public facilities. Additionally, in order to meet the requirements of
concurrency management, the developer of every local development order approved by Collier County is
required to pay a portion of the estimated Transportation Impact Fees associated with the project in
accordance with Chapter 74 of the Collier County Code of Laws and Ordinances. Other fees collected
prior to issuance of a building permit include building permit review fees. Please note that impact fees
and taxes collected were not included in the criteria used by staff and the Planning Commission to
analyze this petition.
GROWTH MANAGEMENT IMPACT: The subject property is located within the Urban, Urban
Mixed-Use District, Urban Residential Subdistrict, 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. As previously noted, the petitioner seeks an after-the-fact
variance from the minimum side yard setback of the RMF-6 zoning district from 7.5 feet to 4.71 feet for
an existing pool. The subject 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.
COLLIER COUNTY PLANNING COMMISSION (CCPC) RECOMMENDATION: The CCPC
heard petition CU PL20180003748 on February 20, 2020, and by a vote of 4-0 recommended to forward
this petition to the Board of Zoning Appeals with a recommendation of approval with no stipulations.
There was no public opposition to the petition. As such, this petition will be placed on Summary Agenda.
LEGAL CONSIDERATIONS: Petitioner is requesting a Variance to reduce the minimum side yard
setback on the west side from 7.5 feet to 4.71 feet for an existing pool. The granting of such a Variance is
permitted under LDC §9.04.02.
The attached staff report and recommendations of the Planning Commission are advisory only and are not
binding on you. All testimony given must be under oath. The Petitioner has the burden to prove that the
proposed Variance is consistent with all the criteria set forth below, and you may question Petitioner, or
staff, to satisfy yourself that the necessary criteria have been satisfied. LDC Section 10.09.00 F. requires
that “Upon consideration of the Planning Commission’s report, findings and recommendations, and upon
consideration of the standards and guidelines set forth [below], the Board of Zoning Appeals shall
approve, by resolution, or deny a petition for a variance.” Should you consider denying the Variance, to
assure that that your decision is not later found to be arbitrary, discriminatory or unreasonable, the denial
must be based upon competent, substantial evidence that the proposal does not meet one or more of the
listed criteria below.
In granting any Variance, the Board of Zoning Appeals may prescribe the following:
1. Appropriate conditions and safeguards in conformity with the zoning code or other
applicable county ordinances. Violation of such conditions and safeguards, when made a part of the terms
17.D
Packet Pg. 1662
03/24/2020
under which the Variance is granted, shall be deemed a violation of the zoning code.
2. A reasonable time limit within which the action for which the Variance required shall be
begun or completed or both.
Criteria for Variances
1. There are special conditions and circumstances existing which are peculiar to the location,
size, and characteristics of the land, structure, or building involved.
2. There are special conditions and circumstances which do not result from the action of the
applicant, such as pre-existing conditions relative to the property which is the subject of the Variance
request.
3. A literal interpretation of the provisions of the LDC work unnecessary and undue hardship on
the applicant or create practical difficulties on the applicant.
4. The Variance, if granted, will be the minimum Variance that will make possible the
reasonable use of the land, building, or structure and which promote standards of health, safety, or
welfare.
5. Granting the Variance requested will not confer on the petitioner any special privilege that is
denied by these zoning regulations to other lands, buildings, or structures in the same zoning district.
6. Granting the Variance will be in harmony with the intent and purpose of the LDC, and not be
injurious to the neighborhood, or otherwise detrimental to the public welfare.
7. There are natural conditions or physically induced conditions that ameliorate the goals and
objectives of the regulation, such as natural preserves, lakes, golf course, etc.
8. Granting the Variance will be consistent with the GMP.
This item has been approved as to form and legality, and requires a majority vote for Board
approval.- SAA
RECOMMENDATION: Staff concurs with the recommendation of the CCPC, which is reflected in the
attached Resolution and recommends that the Board approve the applicant’s request to reduce the
minimum side yard setback from 7.5 feet to 4.71 feet for an existing pool.
Prepared by: Timothy Finn, AICP, Principal Planner, Zoning Division
ATTACHMENT(S)
1. Staff Report - 699 99th Ave N - Variance (PDF)
2. Attachment A - Proposed Resolution (PDF)
3. Attachment B - Map of Boundary Survey, dated April 4th, 2019 (PDF)
4. [Linked] Attachment C - Application Back up materials (PDF)
5. Legal Ad - Agenda ID 11200 (PDF)
17.D
Packet Pg. 1663
03/24/2020
COLLIER COUNTY
Board of County Commissioners
Item Number: 17.D
Doc ID: 11200
Item Summary: This item requires ex parte disclosure be provided by the Commission members.
Should a hearing be held on this item, all participants are required to be sworn in. Recommendation to
approve a Resolution of the Board of Zoning Appeals of Collier County, Florida, relating to a variance
request from from Section 4.02.01 A., Table 2.1 of the Collier County Land Development Code to reduce
the minimum side yard setback on the west side from 7.5 feet to 4.71 feet for an existing pool. The
property is described as Lot 1 and the east half of Lot 2, Block 28, Naples Park Unit No. 3, also described
as 699 99th Ave. N., in Section 28, Township 48 South, Range 25 East, Collier County, Florida.
[PL20180003748]
Meeting Date: 03/24/2020
Prepared by:
Title: – Zoning
Name: Tim Finn
02/21/2020 12:49 PM
Submitted by:
Title: Manager - Planning – Zoning
Name: Ray Bellows
02/21/2020 12:49 PM
Approved By:
Review:
Growth Management Department Judy Puig Level 1 Reviewer Completed 02/24/2020 4:36 PM
Zoning Ray Bellows Additional Reviewer Completed 02/24/2020 5:59 PM
Growth Management Department Thaddeus Cohen Department Head Review Completed 02/25/2020 6:11 PM
Growth Management Department James C French Deputy Department Head Review Completed 02/27/2020 1:53 PM
County Attorney's Office Sally Ashkar Level 2 Attorney Review Completed 03/02/2020 4:36 PM
Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 03/02/2020 5:12 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 03/03/2020 8:02 AM
Office of Management and Budget Laura Zautcke Additional Reviewer Completed 03/11/2020 8:53 AM
County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 03/14/2020 1:12 PM
Board of County Commissioners MaryJo Brock Meeting Pending 03/24/2020 9:00 AM
17.D
Packet Pg. 1664
C-ounty
STAFF REPORT
TO:COLLIER COUNTY HEARING EXAMINER
GROWTH MANACEMENT DEPARTMENT
ZONING DIVISION. ZONING SERVICES SECTION
HEARING DATE: FEBRUARY20,2020
SUBJECT: PETITION VA-PL20180003748 (699 99th Ave N)
PROPERTY OWNER/AGENT:
Owner:
Michael and Kimberly Woodyard
699 99s Ave N
Naples, FL 34109
Matthew P. Flores, Esq.
Zampogna Flores, PLLC
I l7 Goodlette Rd N #204
Naples, FL 34102
To have the Collier County Planning Commission (CCPC) consider an application for an after-
the-fact variance from Section 4.02.01 A., Table 2.1 of the Collier County Land Development
Code to reduce the minimum side yard setback on the west side from 7.5 feet to 4.71 feet for an
existing pool in the Residential Multi-Family- 6 (RMF-6) zoning district.
GEOGRAPHIC LOCATION:
The subject property is described as Lot I and the east halfofLot 2, Block 28, Naples Park Unit
No. 3, also described as 699 99s Ave. N., in Section 28, Township 48 South, Range 25 East,
Collier County, Florida, consisting of 0.27+ acres (See location map on page 2).
VA-PL20180003748 (699 99rh Ave N)
Revised: February 10, 2020 Page 1 of I
FROM:
Agents:
REOUESTED ACTION:
AGENDA ITEM 9.A.3
17.D.1
Packet Pg. 1665 Attachment: Staff Report - 699 99th Ave N - Variance (11200 : Woodyard - Variance)
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17.D.1
Packet Pg. 1667 Attachment: Staff Report - 699 99th Ave N - Variance (11200 : Woodyard - Variance)
PURPOSE/DESCRIPTION OF PROJECT :
Currently, an existing pool encroaches into a required side yard setback. As such, the agent
requests a variance from Section 4.02.01A., Table 2.1 of the Collier County Land Development
Code to reduce the minimum side yard setback on the west side from 7.5 feet to 4.71 feet for an
existing pool in the RMF-6 zoning district.
SURROUNDING LAND USE AND ZONING:
This section of the staff report identifies the land uses and zoning classifications for properties
surrounding boundaries of the subject property:
North:Single-family residential, Zoned RMF-6
7th St ROW/ Single-family resident ial, Zoned RMF-6
99th Ave N ROW/ Single-family residential,ZonedRMF-6
Single-family residential, Zoned RMF-6
East:
VA-P120180003748 (699 99th Ave N)
Revised: February 10, 2020
South:
West:
Collier County Property Appraiser
Page 4 of 8
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17.D.1
Packet Pg. 1668 Attachment: Staff Report - 699 99th Ave N - Variance (11200 : Woodyard - Variance)
GROWTH MANAGEMENT P LAN (GMP)CONSISTENCY:
The subject property is located within the Urban, Urban Mixed-Use District, Urban Residential
Subdistrict, on the County's Future Land Use Map (FLUM) of the Future Land Use Element
(FLUE) of the CMP. The GMP does not address individual Variance requests but deals with the
larger issue of the actual use. As previously noted, the petitioner seeks an after{he-fact variance
from the minimum side yard setback of the RMF-6 zoning district from 7 .5 feet to 4.71feet for an
existing pool. The subject 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.
AFF ANALYSIS:
The subject property is located within the Naples Park Subdivision. Per the current Land
Development Code (LDC), single-family dwellings shall have a 7.5-foot side yard accessory
setback. The Woodyards purchased the subject property on November 12, 1996. In 2006, the
owner contracted with Berube Bros Inc. to construct a pool and pool deck on the property under
permit# cDP2006100432 issued on October 5th,2006. The contractor obtained the permit the next
day and proceeded with the work but never called in the final inspection and thus the permit
expired on April I lrh,2007. The owners were not aware ofthe issue until September of 2017 when
the owners had the property appraised in anticipation of a sale ofthe property.
It shall be noted that the pool and the deck are encroaching into the setback. Per LDC Section
1.08.02, the definition of a yard is "An open space that is unoccupied and unobstructed, and that
lies between a principal or accessory building or buildings and the nearest lot line. As used in this
definition, "unobstructed" means a structure or portion of a structure from 30 inches above the
ground level upward and does not include permissible fences ond walls. " Moreover, per LDC
Section 4.02.01(D)(3), "Every part of every required yard shall be open and unobstructed from
thirty (30) inches above the general ground level of the graded lot upward to the slcy except as
hereinafter provided or as otherwise permitted in this LDC." As such, per these definitions, it is
the opinion of staff that the pool deck is not subject to meet setbacks as the highest point of the
deck is 12 inches and is under the 3O-inch threshold; therefore, the deck is not subject to this
variance.
In this case, the pool shell encroaches 2.79 feet into the setback. As such, the variance for this
petition is being requested at 4.71 feet from the side property line. There have been other variances
granted within this neighborhood for similar situations, and none have been injurious to the
neighborhood or detrimental to the public welfare. This pool and deck encroachment have been in
existence for nearly 14 years. To date, no known complaints have been received from any
neighboring properties in regard to this pool and deck.
VA-PL20180003748 (699 99'h Ave N)
Revised: February 10, 2020
Section 9.04.01 of the Land Development Code gives the Board of Zoning Appeals (BZA) the
authority to grant Variances. The Planning Commission is advisory to the BZA and utilizes the
provisions of Section 9.04.03 A. through H. (in bold font below), as general guidelines to assist in
making their recommendation of approval or denial. Staff has analyzed this petition relative to
these provisions and offers the following responses:
Page 5 of I
17.D.1
Packet Pg. 1669 Attachment: Staff Report - 699 99th Ave N - Variance (11200 : Woodyard - Variance)
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a. Are there special conditions and circumstances existing, which are peculiar to the
Iocation, size and characteristics ofthe land, structure or building involved?
There are no special conditions or circumstances existing which are peculiar to the location,
size, and characteristics ofthe lan4 strucnres, or building involved.
b, Are there special conditions and circumstances, which do not result from the action
ofthe applicant such as pre-existing conditions relative to the property, which are the
subject of the Variance request?
Yes, unknown to Owner, Contractor did not acquire the certificate of completionor final
inspections to close the Permit. Contractor was in violation of the original plan which was
approved by Collier County. Owner was not made aware ofthe setback encroachment until
2018, approximately eleven years after Contractor installedthe pool andpool deck. Owner
has satisfied all other conditions to receive a certificate of completion for the Permit.
Will a literal interpretation of the provisions of this zoning code work unnecessary
and undue hardship on the applicant or create practical difliculties for the applicant?
Yes, unknown to Owner, Contractor did not acquire the certificate of completion or final
inspections to close the Permit. lt would be wasteful for Owner to have to demolish and
rebuild the Pool due to the minimal setback encroachment. This would result in an undue
financial hardship on Owner.
d. Will the Variance, if granted, be the minimum Variance that wilt make possible the
reasonable use of the land, building or structure and which promote standards of
health, safety and welfare?
Yes, the variance proposed would be the minimum variance to allow the decrease in the
side yard setback from 7.5 ftto 4.71 ft for the pool. This zoning issue has existed for nearly
14 years and was only brought to the Owner's attention as a result oftrying to sell the
Property. Standards ofhealth, safety, andwelfare havenotandwill not be disturbed.
Yes, by definition, a Variance bestows some dimensional relieffrom the zoning regulations
specific to a site. However, LDC Section 9.04.02 provides relief through the Variance
process for any dimensional development standard, such as the requested side yard setback
decrease. 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.
f. 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?
VA-P120180003748 (699 99ih Ave N)
Revised: February 10, 2020 Page 6 of 8
e. 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?
17.D.1
Packet Pg. 1670 Attachment: Staff Report - 699 99th Ave N - Variance (11200 : Woodyard - Variance)
Yes, as mentioned above this zoning issue has gone unnoticed and existed for nearly 14
years. It has not disturbed the harmony of the neighborhood in any way and is not
detrimental to thepublic welfare in any way.
g. 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, ?
There are no natural conditions or physically induced conditions that ameliorate the goals
and objectives ofthe regulation, such as natural preserves, lakes, golfcourses, etc.
The EAC does not normally hear variance petitions. Since the subject variance doesn't impact any
preserve area, the EAC did not hear this petition.
COUNTY ATTORNEY OFFICE REVIEW:
The County Attorney Oflice has reviewed the staff report for PL20180003748 revised on February
10,2020.
RECOMMENDATION:
Attachments:
A)
B)
c)
Proposed Resolution
Map of Boundary Suwey, dated April 4th 2019
Backup Materials
VA-PL20180003748 (699 99rh Ave N)
Revised: February10, 2020 Page 7 of 8
h. Will granting the Variance be consistent with the GMP?
Approval of this variance will not affect or change the requirements of the GMP.
ENVIRONMENTAL ADVISORY COUNCIL (EAO RECOMMENDATION:
Staff recommends that the Collier County Planning Commission (CCPC) approve Petition VA-
PL20180003748, 699 996 Ave N. Variance to reduce the minimum side yard setback from 7.5 feet
to 4.71 feet for an existing pool.
17.D.1
Packet Pg. 1671 Attachment: Staff Report - 699 99th Ave N - Variance (11200 : Woodyard - Variance)
PREPARED BY:
TIMOTHY , AICP, PRINCIPAL PLANNER
ZONING DIVISION-ZONING SERVICES SECTION
REVIEWED BY:
RA V. BELLOWS, ZONING MANAGER
ZONING DIVISION-ZONING SERVICES SECTION
FRENCH, DEPUTY DEPARTMENT HEAD
GROWTH MANAGEMENT DEPARTMENT
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DATE
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DATE
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DATE
VA-P120180003748 (699 99rh Ave N)
Revised: February 5, 2020 Page 8 of 8
17.D.1
Packet Pg. 1672 Attachment: Staff Report - 699 99th Ave N - Variance (11200 : Woodyard - Variance)
17.D.2
Packet Pg. 1673 Attachment: Attachment A - Proposed Resolution (11200 : Woodyard - Variance)
17.D.2
Packet Pg. 1674 Attachment: Attachment A - Proposed Resolution (11200 : Woodyard - Variance)
17.D.2
Packet Pg. 1675 Attachment: Attachment A - Proposed Resolution (11200 : Woodyard - Variance)
17.D.3
Packet Pg. 1676 Attachment: Attachment B - Map of Boundary Survey, dated April 4th, 2019 (11200 : Woodyard - Variance)
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Packet Pg. 1677 Attachment: Legal Ad - Agenda ID 11200 (11200 : Woodyard - Variance)