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Chapter 09 - Variations From Code Requirements CHAPTER 9 VARIATIONS FROM CODE REQUIREMENTS 9.01.00 Generally 9.02.00 Vested Rights and Takings Determinations 9.02.01 Applications for Vested Rights Determinations 9.02.02 Determination of Completeness 9.02.03 Review of Application by County Manager and County Attorney; Determination or Recom- mendation 9.02.04 Hearing Officer Review and Vested Rights Determination 9.02.05 Criteria for Vested Rights Determinations 9.02.06 Required Notices for Vested Rights Determination Process, Including Public Hearings 9.02.07 Issuance of a Vested Rights Determination by Hearing Officer 9.02.08 Appeal of Hearing Officer's Vested Rights Determination 9.02.09 Expiration of Vested Rights Determinations 9.02.10 Process for Review and Remedy of Taking Claims 9.03.00 Nonconformities 9.03.01 Generally 9.03.02 Requirements for Continuation of Nonconformities 9.03.03 Types of Nonconformities 9.03.04 reserved 9.03.05 reserved 9.03.06 reserved 9.03.07 Nonconformities Created or Increased by Public Acquisition 9.04.00 Variances 9.04.01 Generally 9.04.02 Types of Variances Authorized 9.04.03 Criteria for Variances 9.04.04 Specific Requirements for Minor After-the-Fact Encroachment 9.04.05 Specific Requirements for Variances to Flood Hazard Protection Requirements 9.04.06 Specific Requirements for Variance to the Coastal Construction Setback Line 9.04.07 Reserved Supp. No. 11 LDC9:1 VARIATIONS FROM CODE REQUIREMENTS 9.01.00 9.02.01 A.2. 9.01.00 GENERALLY This chapter is intended to provide mechanisms for obtaining relief from the provisions of the LDC where it is necessary to vary from the requirements of the LDC. Variation from the regulations in the LDC may result from the following circumstances: development that is vested for the use or design standards that apply to the property;development that is nonconforming;or development that is granted approval to vary from one or more regulations by the Board of Zoning Appeals. Each of these circumstances is described in this chapter. 9.02.00 VESTED RIGHTS AND TAKINGS DETERMINATIONS A. Landowners claiming that certain of their property rights have either: a) vested prior to establishment of this Code on November 13, 1991, or prior to the effective date of any amendment or revision to this Code, including the claim to a right to an Adequate Public Facilities Certificate (APFC), or b) been unlawfully taken, may use the vested rights determination process and takings determination process under this section, as either or both may be applicable. Both processes are to be administered as provided for in this section and are intended to ensure landowners are afforded adequate procedural due process by providing for required notice, public hearing, the right to present and rebut evidence, create a formal, written record, and an impartial hearing officer, as may be applicable under these processes. B. Claims or suits against Collier County, including its board of county commissioners, whether sued individually or collectively, and any official thereof, which: a)allege vested rights or equitable estoppel, or b) challenge the denial, revocation, suspension, or any other limitation or restriction set forth in a development order or development permit, or any other governmental act of Collier County as a temporary or permanent taking of private property, including claims or suits of an inordinate burden of private property, cannot be deemed final action or a final order of the County in any court or quasi-judicial proceeding unless and until the processes provided for by this section have been fully complied with and exhausted. C. The provisions of this Code are expressly intended to regulate landowners' rights to develop their property in the unincorporated areas of the county as may be necessary to protect the public's health and safety and to promote its general welfare without violating landowners' legally vested rights obtained in accordance with Florida common law and statutory law, particularly F.S. § 163.3167(8). (Ord. No. 04-72, § 3.X) 9.02.01 Applications for Vested Rights Determinations A. Applications for a determination of claimed vested rights must be submitted along with the initially required application fee in the form established by the County and must be sworn to or comply with F.S. § 92.525, for declarations made under penalty of perjury. In order to be considered timely, all applications must be filed within one year of the effective date of this Code, or of any amendment or revision to the Code, against which the landowner claims to be vested. Failure to timely file such application within the one-year period will act as a landowner's waiver of the claimed rights and bar all claims for vested rights or equitable estoppel for the landowner's property. Applications must include: 1. Name, address, and telephone number of the landowner, and of any authorized agent(s); 2. Street address, legal description, and acreage of the subject property; Supp. No. 1 LDC9:3 COLLIER COUNTY LAND DEVELOPMENT CODE 9.02.01 A.3. 9.02.03 A. 3. All facts, documents, records, attachments, appendices, exhibits, or other information reasonably available to the landowner through diligent research which are considered by the landowner to be relevant and which would tend to establish the criteria for a vested rights determination set forth in section 9.02.05.The application should include any information the applicant considers necessary and that would substantiate those facts supporting the claim. The guide for inclusion of information should be whether the information would constitute competent, substantial evidence in a quasi-judicial or judicial proceeding; 4. All legal arguments in support of the claims alleged; 5. Any relief or remedies proposed to resolve the claims alleged; and 6. The signature of the landowner or any attorney for the landowner. Signatures affixed to an application will constitute certification that the person signing has read the document and that to the best of the person's knowledge it is supported by good grounds and that it has not been submitted solely for purposes of delay. B. Applicants may include such information under section 9.02.10. B.3.a.—g., as they consider necessary to establish their claims. C. A landowner and any attorney for the landowner has a continuing obligation to amend or correct any document submitted with the application which is incorrect because of changed circumstances or which was found to have been incorrect. (Ord. No. 04-72, § 3.X) 9.02.02 Determination of Completeness ...— After receipt of a fully paid application for a determination of vested rights, the county manager will determine if the information submitted with the application is complete. If the application is determined to not be complete, the county manager will provide notice to the applicant in writing of all deficiencies found within five (5) days. The county manager will take no further steps to process or review the application until all deficiencies have been adequately remedied or the county manager is notified by the landowner that no further information will be provided. (Ord. No. 04-72, § 3.X) 9.02.03 Review of Application by County Manager and County Attorney; Determination or Recommen- dation Completed applications for determinations of vested rights, i.e., those deemed sufficient for review, will be reviewed by the county manager and the county attorney under the criteria in section 9.02.05.,within forty-five (45) days. Based on their review, the county manager and the county attorney will thereafter within ten (10) days either:a)enter into a written stipulated determination of vested rights with the owner,or b)make a written recommendation to a hearing officer for a determination that the application should be denied, granted or granted with conditions. A. If the county manager and the county attorney agree that the application for a determination of vested rights so clearly demonstrates that the requested relief should be granted or granted with conditions acceptable to the landowner,then they are authorized to enter into a stipulated determination of vested rights with the landowner on behalf of the County. The county manager's and the county attorney's written determination must include: a) their findings of Supp. No. 1 LDC9:4 VARIATIONS FROM CODE REQUIREMENTS 9.02.03 A. 9.02.04 B. fact based on the criteria established in section 9.02.05.; b) their conclusions of law for such criteria; c) their findings of consistency with the growth management plan and the Code, as applicable;and d)the specific relief to be afforded by the determination,which must be signed by the County Manager and the County Attorney, as well as the landowner. B. If the County Manager and the County Attorney do not agree after their review that the application for determination of vested rights so clearly demonstrates that the requested relief should be granted or granted with conditions acceptable to the landowner, then they will prepare a report for consideration by a qualified hearing officer which recommends that the requested relief should be granted, granted with conditions, or denied. The written recom- mendation to the hearing officer must include: a) their findings of fact based on the criteria established in section 9.02.05.; b)their conclusions of law for such criteria;c)their findings of consistency or inconsistency with the growth management plan, as applicable; and d) the specific relief to be afforded, if any, in whole or in part, by the determination. The procedures to be followed for qualification and selection of the hearing officer are those set forth in section 9.02.04. The procedures to be followed for the hearing officer's review of the claim, public hearing, and issuance of a written determination are set forth below in sections 9.02.04. and 9.02.06. (Ord. No. 04-72, § 3.X) 9.02.04 Hearing Officer Review and Vested Rights Determination A. In the event that all of a landowner's claims are not fully resolved by the process under section 9.02.03., the County Manager will solicit for a hearing officer who must meet the following minimum qualifications: a) be an attorney admitted to practice before the Supreme Court of the State of Florida, b) have demonstrated knowledge of administrative, environmental, and land use law and procedure; and c) agree to hold no other appointive or elective county public office or position during the period retained. A qualified hearing officer selected by the County Manager and County Attorney will be retained immediately upon the landowner's payment of any additional fees required for a hearing officer's determination of vested rights.Once retained,the application,written recommendation of the County Manager and County Attorney,and all supporting documentation,collectively considered to be the then existing official record of the claim, will be provided to the hearing officer for review. Within fifteen (15)days of notice of retaining a qualified hearing officer,the claimant must provide the hearing officer and all other parties a list of the names and addresses of any witnesses which the claimant intends to present in support of its claim and a summary of the testimony of each witness. In no event, however, will the requisite public hearing be scheduled or noticed until the list and summary are properly provided. B. At any time after thirty(30) days from receipt of the official record, the hearing officer is to conduct a properly noticed public hearing.The hearing will follow such rules of procedure for quasi-judicial, civil proceedings as the hearing officer may consider are reasonably required to afford all parties procedural due process and as follows. The parties entitled to appear before the hearing officer are the county, the landowner, and those members of the public who have timely notified the County Manager and hearing officer of their intention to be considered as affected persons under section 9.02.04 C., below. In the event that any affected person's claimed status as a party is challenged by another party, the hearing officer will determine whether that person is entitled to appear as an affected person under the traditional notions of standing set forth in Florida jurisprudence.The order Supp. No. 11 LDC9:4.1 COLLIER COUNTY LAND DEVELOPMENT CODE 9.02.04 B. 9.02.06 A.1. of presentation before the hearing officer will be: a)the landowner, b) the county, and c) any affected person(s).Although the public is invited to attend the hearing, members of the general public may not participate unless testifying as a party witness under one of the three categories above. C. Affected persons intending to participate as a party in any hearings held as part of the vested rights determination process must submit written comments and pertinent factual information and data to the County Manager for inclusion in the official record within fifteen (15) days of the landowner's mailing of notice to all persons as set forth in section 9.02.06.A.The pertinent factual information and data will be reviewed and considered by the County Manager and County Attorney, and when applicable, will be submitted to the hearing officer as an attachment to the County Attorney's and County Manager's recommendation to the hearing officer and become part of the official record. The names of affected persons intending to appear as a party witness, along with a written summary of their testimony, must be submitted to the hearing officer no later than ten (10) days prior to the advertised date of the hearing officer's public hearing. (Ord. No. 04-72, § 3.X) 9.02.05 Criteria for Vested Rights Determinations A. This section is intended to establish criteria for vested rights determinations that strictly adhere to,and implement, existing Florida statutory and case law as they relate to the doctrine of vested rights and equitable estoppel. Each determination is to be made on a case-by-case basis in light of these criteria and the specific factual and legal analysis of that claim. Landowner's claims should not be afforded the relief or remedy sought unless the landowner demonstrates by substantial competent evidence that it's entitled to complete it's development without regard to the otherwise applicable provision(s)of this Code based on either: a) meeting the provisions of F.S. § 163.3167(8); or b) that: 1) upon some act (such as enacting the challenged provision of this Code) or omission of the county, 2)the landowner relying in good faith, (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights acquired to apply the challenged provision. B. The provisions of Code of Laws § 106-46 (i) Criteria for Vested Rights, (2) & (3), may be used as an additional guide for consideration of the second and third criteria in A., above. (Ord. No. 04-72, § 3.X) 9.02.06 Required Notices for Vested Rights Determination Process, Including Public Hearings A. Within 15 days of the date of receipt by the county of a completed application for a vested rights determination, the landowner must provide notice of the submission of the application by: 1. Prominently posting on the property for which the vested rights determination is sought a sign advising of the substance of the claim of vested rights. The sign shall be posted at least 15 days prior to the date of the public hearing by the planning commission.The sign to be posted shall contain substantially the following format. a. Public Hearing for Vested Rights Determination: To Permit: (sufficiently clear to describe the project) Date: Supp. No. 11 LDC9:4.2 VARIATIONS FROM CODE REQUIREMENTS 9.02.06 A.1. 9.02.06 C. Time: To be held in the Commissioners Meeting Room, Administration Building, County Government Center, 3299 Tamiami Trail East, Naples, Florida 2. The area of the signs shall be as follows: a. For properties less than one acre in size,the sign shall measure at least one and one half square feet in area. b. For properties 1 acre or more in size, the sign shall measure at least 32 square feet in area. 3. In the case of signs located on properties less than one acre in size,the sign shall be erected by the County Manager or designee in full view of the public on each street side of the subject property. Where the property for which approval is sought is landlocked or for some other reason the signs cannot be posted directly on the subject property, then the sign or signs shall be erected along the nearest street right-of-way, with an attached notation indicating generally the distance and direction to the subject property. 4. In the case of signs located on properties one acre or more in size, the applicant shall be responsible for erecting the required sign(s).A sign shall be erected in full view of the public on each street upon which the subject property has frontage. Where the subject property is landlocked, or for some other reason the signs cannot be posted directly on the subject property, then the sign or signs shall be erected along the nearest street right-of-way, with an attached notation indicating generally the distance and direction to the subject property. There shall be at least one sign on each external boundary which fronts upon a street, however, in the case of external boundaries along a street with greater frontages than 1,320 linear feet, signs shall be placed equidistant from one another with a maximum spacing of 1,000 linear feet,except that in no case shall the number of signs along the exterior boundary fronting on a street exceed 4 signs. The applicant shall provide evidence to the County Manager or designee that the sign(s)were erected by furnishing photographs of the sign(s) showing the date of their erection at least ten days prior to the scheduled public hearing by the planning commission,whichever has jurisdiction.The signs shall remain in place until the date of either the following occurrences: 1) Final action is taken by the board of county commissioners or 2) The receipt of written notification by the County Manager or designee from the applicant requesting to withdraw the petition or requesting its indefinite continuance. 5. Mailing notice to all property owners within 300 feet of the property lines of the subject property. The mailed notice must briefly state the nature of the claim and must be made via certified mail, return receipt requested, sent at the landowner's expense. B. Public notice for vested rights determination hearings held pursuant to section 9.02.04. or section 9.02.08. must be provided by publication at least one time in a newspaper of general circulation at least fifteen (15) days in advance of any public hearing stating the time, place, purpose of such hearing, including a brief statement of the nature of the claim. C. For those claims not resolved under section 9.02.03.,the landowner must additionally provide the type of mailed notice described in A.,above to all persons who have notified the County Manager that they should be considered as an affected person at least twenty (20) days prior to the hearing officer's public hearing. Supp. No. 11 LDC9:4.3 COLLIER COUNTY LAND DEVELOPMENT CODE 9.02.06 D. 9.02.09__ D. For those claims not resolved under section 9.02.08,the appealing party must additionally:a)provide the type of mailed notice described in A., above to all other parties at least fifteen (15) days prior to the public hearing, and b) publish the notice for the public hearing required under B., above. (Ord. No. 04-72, § 3.X; Ord. No. 13-56, § 3.FF) 9.02.07 Issuance of a Vested Rights Determination by Hearing Officer Within fifteen (15) days after the completion of the hearing officer's public hearing, the hearing officer will render a determination denying, granting, or granting with conditions, all vested rights claimed by the landowner.The determination must be based upon the hearing officer's review and consideration of the official record which will include the application for determination of vested rights,the recommendation of the County Manager and the County Attorney, and the evidence and testimony presented at the public hearing by all parties.The determination must be in writing and specifically set forth enumerated: a) findings of fact, and b) conclusions of law for each criterion of section 9.02.05., as applicable to each claim.The determination must also state the specific relief or remedy afforded the landowner, if any, and detail any conditions which the landowner must comply with to obtain such relief. (Ord. No. 04-72, § 3.X) 9.02.08 Appeal of Hearing Officer's Vested Rights Determination Within 30 days after the hearing officer's written determination of vested rights being rendered, either the county or the landowner may appeal the determination to the board of county commissioners.Any additional fee for a landowner-initiated appeal must accompany the appeal.The board of county commissioners may: a) affirm the hearing officer's determination of vested rights, with or without modifications or conditions, or b) reject the hearing officer's determination, except that the board may not modify the determination or impose conditions, or reject the hearing officer's determination unless the board expressly finds that one or more of the hearing officer's findings of fact or conclusions of law is not supported by competent substantial evidence in the official record, or that the hearing officer's determination otherwise specifically failed to properly apply one or more of the criterion in section 9.02.05. Because the law in the area of vested rights and equitable estoppel is constantly changing in both substance and interpretation, the board should be guided by advice from the office of the County Attorney regarding interpretations of appropriate considerations in its deliberations. (Ord. No. 04-72, § 3.X) 9.02.09 Expiration of Vested Rights Determinations Any relief granted by a vested rights determination will be presumed abandoned and expire if not utilized for its proper purpose within two (2) years from the date it was granted. Thus, all determinations of vested rights which are granted, with or without conditions, expire and become null and void two (2) years from the date finally issued, i.e., the last of either: a) the latest date signed as a stipulated agreement, b) the date rendered by a hearing officer,or c)otherwise finally determined following any appeal;unless: 1)any conditions imposed are complied with and construction authorized by the determination is commenced pursuant to an approved final development order or permit, and 2)construction continues in good faith under then applicable regulations for development.The two(2)year time limitation to commence and continue construction will only be stayed for any time period during which construction is prohibited, deferred, or delayed by the county due to inadequate public facilities, as otherwise provided for by this Code. (Ord. No. 04-72, § 3.X) Supp. No. 11 LDC9:4.4 VARIATIONS FROM CODE REQUIREMENTS 9.02.10 9.02.10 B.3. 9.02.10 Process for Review and Remedy of Taking Claims A. Scope. This section applies to: 1. A landowner's claim which would otherwise arise in a court of competent jurisdiction as a taking of property without just compensation under any law applicable to the county and that arises from: a. The denial of property or development rights sought as part of a development permit or development order, or b. The application of any other provision of the county's comprehensive plan, its implementing land development regulations as stated in this Code, or other ordi- nances. 2. Persons denied a claimed remedy sought as part of a vested rights determination under sections 9.02.00.-9.02.09., of this Code; and 3. Any aggrieved or adversely affected party meeting the standard for"standing"defined in F.S. § 163.3215(2), and alleging that the grant or issuance to another person of a development order or development permit by the county constitutes a taking of his property. 4. Notwithstanding the provisions set forth above, this section does not apply to takings claims arising as part of a condemnation or eminent domain action to which the county is,or may be, a party. B. Administrative procedures for filing and documentation of takings claims. 1. All takings claims must be filed with the County Manager and be accompanied by such fee as may be required. 2. Any person filing a takings claim must affirmatively demonstrate the validity of the claim alleged by submitting a sworn statement setting forth the facts upon which the takings claim is based. The sworn statement should include any information the applicant considers necessary. As such, a statement may contain attachments, appendices or exhibits that substantiate those facts supporting the claim.The guide for inclusion of information should be whether the information would constitute competent, substantial evidence in a quasi-judicial or judicial proceeding. 3. In addition to a demonstration of a potential taking claim,the applicant's evidence should also provide that information necessary to fashion a remedy, should a potential taking claim be found to exist. As part of a typical claim package, the sworn statement required by this Supp. No. 11 LDC9:4.4.1 VARIATIONS FROM CODE REQUIREMENTS 9.02.10 B.3. 9.02.10 BA. subsection should support the claim for a remedy by including any additional affidavits,copies of drawings, contracts, recordings, reports, letters, appraisals,or any other form of documen- tation or information that may apply, including, but not limited to: a. The transcript or record of any previous hearing where the claim is alleged to have arisen, b. Evidence of the expenditure of funds for land, the acquisition of which provides the basis of the taking claim, c. Evidence of expenditures of funds for planning, engineering, environmental, and other consultants for site plan preparation, site improvement or other preparation, or construction, d. Evidence of expenditures for construction of actual buildings in accordance with an existing or prior development order or development permit issued by the county, e. Any relevant donations or dedications of real property or any other property interest made to the county for the following purposes: i. Roads or other transportation or public utility facilities, ii. Access (ingress/egress) or rights-of-way, iii. Drainage easements, iv. Parks or recreation/open space, v. Retention/detention areas, vi. Preservation or conservation areas, or vii. Any other purpose consistent with the provision of services for any element of the county's comprehensive plan; which are either on- or off-site with respect to the property involved in the claim. f. Evidence of costs of construction of any roads, sidewalks, stormwater detention/ retention or drainage facilities, sewer or water facilities, parks, etc., which would be either on- or off-site, and part of a plan permitting development on the subject property, or g. Other development orders or development permits issued by the county with respect to the property involved in the takings claim,and any related federal,state or regional permits. 4. As part of a sworn statement, the claimant is required to provide a list of the names and addresses of any witnesses which the claimant will present in support of the claim and a summary of the testimony of each witness. Supp.No. 6, Rev. LDC9:4.5 COLLIER COUNTY LAND DEVELOPMENT CODE 9.02.10 B.S. 9.02.10 C.2. 5. Additionally, the claimant should consider submitting as part of its sworn statement informa- _ tion which: a. Demonstrates that the claimant has acted in good faith and without knowledge that changes to applicable ordinances, resolutions, or regulations might effect his development expectations. In establishing "good faith,"the claimant should consider submitting information which affirmatively states that the claimant: Has not waived, abandoned, or substantially deviated from related prior county development approvals; ii. Has not,by act or failure to act,consented or assented to changes in related prior county development approvals; and iii. Has, at all times relevant, conformed with the applicable laws, rules, and regulations of the state and the county. b. If applicable, details the specific governmental act, ordinance, resolution, regulation or comprehensive plan provision that the claimant believes gave rise to the takings claim. 6. The signature of the claimant, or any attorney for the claimant, upon any document submitted as part of a sworn statement will constitute certification that the person signing has read the document and that to the best of the person's knowledge it is supported by good grounds and that it has not been submitted solely for purposes of delay. Further, the claimant and any attorney for the claimant will have a continuing obligation to amend or correct any document submitted which is incorrect because of changed circumstances or was found to have been incorrect. 7. If the board of county commissioners makes a determination and finding that the sworn statement submitted as part of a taking claim is: a. Based on facts that the claimant or any attorney for the claimant knew or should have known was not correct or true; or b. Frivolous or filed solely for the purposes of delay; then the board of county commissioners, in addition to the penalties set forth in section 10.07.00. A.2.e., may pursue any remedy or impose any penalty provided for by law or ordinance. C. Review, hearing and standards for takings claims. 1. Within five working days of filing a sworn statement(and any accompanying information) as part of a takings claim, the county manager will determine whether the statement received is complete. If the statement is deficient, then the claimant will be notified, in writing, of the deficiencies. 2. Once a statement is complete, or the claimant has informed the county manager that no further information is forthcoming, the county manager will timely review the application, provide requisite public notice consistent with section 9.02.06 B, and schedule a properly noticed public hearing before the board of county commissioners on the takings claim. Supp.No.6, Rev. LDC9:4.6 VARIATIONS FROM CODE REQUIREMENTS 9.02.1 Q C,3. 9.02,10 C.5. 3. At the scheduled public hearing, sworn testimony and relevant evidence which meets the criteria of subsection B. above should be offered into the record to support the claimant's position. The county manager and staff, and county attorney personnel may offer testimony and evidence, or opinions as may be relevant to the hearing. 4. No later than 30 days after the board of county commissioners closes the public hearing,the board will make and report a conclusive, final decision based upon the record presented. Nothing in this subsection will prevent the board from deciding to continue the hearing to a time-, date-, and place-certain to give staff the opportunity to prepare alternatives, in consultation with the applicant, or to give staff or the applicant the opportunity to prepare responses to questions which the board may have regarding information presented at the hearing. 5. Because the law in the area of takings is constantly changing in both substance and interpretation,the board of county commissioners should be guided by advice from the office of the county attorney regarding interpretations of appropriate considerations in its delibera- tions. In evaluating whether a valid taking claim is presented by the record, and what the measure of relief to be provided to the claimant should be, if any,the following factors will be taken into consideration: a. Whether and to what degree the challenged regulation or combination of regulations has resulted in any physical invasion of the claimant's property by the county or others; b. Whether the challenged regulation, or combination of regulations, has resulted in a denial of all beneficial use of the claimant's property by the county and, if so,whether the logically antecedent inquiry into the nature of the landowner's estate shows that the prescribed use interests were not part of his title to begin with; c. Whether and to what degree the claimant's expectations of use were investment- backed; d. Whether and to what degree the claimant's expectations of use were reasonable in light of the following circumstances as they may apply: i. The logically antecedent inquiry into the nature of the landowner's estate shows that the prescribed use interests were not part of his title to begin with; ii. The existing land use and zoning classification of the subject and nearby properties, as may be relevant; iii. The development history of the subject property and nearby properties; and iv. The suitability of the subject property for the intended or challenged development or use. e. Whether and to what degree the intended or challenged development or use has or would cause any diminution in value of the subject properties, or any relevant properties arising from section 9.02.10 A.3.; Supp.No. 6, Rev. LDC9:4.7 • COLLIER COUNTY LAND DEVELOPMENT CODE 9.02.10 C.5. _--- 9.03.01 C. f. Whether and to what degree any such diminution of property values has promoted the public health, safety, morals, aesthetics, or general welfare, and was consistent with the county's comprehensive plan; and g. To what extent the public would gain from the intended or challenged development or use compared to any resulting hardship upon the claimant alone. 6. Any relief to be provided a claimant will be limited to the minimum necessary to provide a reasonable, beneficial use of the subject property and may be in the form of alternative uses of additional development intensity which may be severed and transferred, or other such non-monetary relief as is deemed appropriate by the board of county commissioners. Any relief granted will be presumed abandoned and expire if not utilized for its proper purpose within one year from the date it was granted. Subsequent applications under this section may review the expired decision for possible reinstatement, with or without modification as deemed necessary under then existing conditions. D. Appeal of takings claim. Any claimant aggrieved by the final decision of the board of county commissioners may seek judicial review of the board's decision by timely filing an action in a court of competent jurisdiction. (Ord. No. 04-72, § 3.X) 9.03.00 NONCONFORMITIES 9.03.01 Generally A. Intent. Within the zoning districts established by the LDC or amendments that may later be adopted, there may exist lots,structures, uses of land,water and structures,and characteristics of use which were lawful before the LOC was adopted or amended, but which would be prohibited, regulated, or restricted under the terms of LDC or future amendments. It is the intent of this section to permit these nonconformities to continue until they are voluntarily renovated or removed as required by the LDC, but not to encourage their survival. It is further the intent of the LDC that the nonconformities shall not be enlarged upon, expanded, intensified, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district. B. Declaration. Nonconforming uses are declared by this section to be incompatible with permitted uses in the districts involved.A nonconforming use of a structure,a nonconforming use of land or water, or a nonconforming use of structure, land or water in combination shall not be extended or enlarged after the effective date of the LDC or relevant amendment thereto by attachment on a structure or premises of additional signs intended to be seen from off the premises,or by the addition of other uses of a nature which would be prohibited generally in the district involved, except as provided for within section 9.03.03 B.4. C. Vested projects. To avoid undue hardship, nothing in the LDC shall be deemed to require a change in the plans, construction,or designated use of a building or property on which a building permit had been applied for prior to the effective date of adoption of relevant amendment of the LDC. In addition, nothing in the LDC shall be deemed to require a change in the plans, construction, or designated use of any property for which a development plan was lawfully required and approved prior to the effective date of adoption of relevant amendment of the LDC, provided that such plan shall expire two (2) years from the date of said approval, or one (1) year from the date of adoption of the LDC, whichever shall first occur, if no actual construction has been commenced; and thereafter, all Supp.No. 6, Rev. LDC9:4.8 VARIATIONS FROM CODE REQUIREMENTS 9.03.01 C. 9.03.02 A. development shall be in accordance with the zoning regulations then in effect. Any such approved plat or plan may be amended by approval of the BCC, provided the degree of nonconformity with the LDC shall not be increased. D. Casual, temporary, or illegal use. The casual, temporary, or illegal use of land or structures, or land and structures in combination, shall not be sufficient to establish the existence of a nonconforming use or to create rights in the continuance of such use. E. Uses under conditional use provisions not nonconforming uses. All uses lawfully existing on the effective date of the LDC or any subsequent amendment to this Code, which are permitted as a conditional use in a district under the terms of the LDC or any subsequent amendment to this Code, shall not be deemed a nonconforming use in such district, but shall without further action be deemed to have a conditional use permit. F. Change to conforming use requires future conformity with district regulations. Where a structure, or structure and premises in combination, in or on which a nonconforming use is replaced by a permitted use shall thereafter conform to the regulations for the district in which the structure is located, and [sic] the nonconforming use shall not thereafter be resumed nor shall any other nonconforming use be permitted. G. Nonconformities not involving the use of a principal structure. Nonconformities not involving the use of a principal structure, including, but not limited to, open storage, building supplies, vehicles, mobile homes, trailers, equipment and machinery storage, junkyard, commercial animal yards and the like, shall be discontinued within one (1) year of the effective date of the LDC or relevant amendment of the LDC. H. Safety of nonconformities. 1. If a nonconforming structure or portion of a structure, or any structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs or maintenance, and is declared by the duly authorized official of Collier County to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired,or rebuilt except in conformity with the regulations of the district in which it is located. 2. If a nonconforming structure or portion of a structure, or any structure containing a nonconforming use, becomes physically unsafe or unlawful for reasons other this lack of repairs or maintenance, nothing contained herein shall be deemed to prevent the strength- ening or restoring to a safe condition of such building or part thereof declared to be unsafe by the authorized official of Collier County charged with the public safety; provided, however, that where such unsafeness or unlawfulness is the result of damage from destruction, the percentage of damage limitations set out in section 9.03.02 F.3., as the case may be, shall apply. (Ord. No. 04-72, § 3.Y) 9.03.02 Requirements for Continuation of Nonconformities Where, at the effective date of adoption or relevant amendment of the LDC, lawful use of lands or waters exists which would not be permitted under the LDC,the use may be continued,so long as it remains otherwise lawful, provided: A. Enlargement, increase, intensification, alteration. No such nonconforming use shall be enlarged, intensified, increased, or extended to occupy a greater area of land, structure, or water than was occupied at the effective date of adoption or relevant amendment of the LDC, except a single-family, duplex, or mobile home use as provided for within section 9.03.03 B.4. Supp. No. 12 LDC9:5 COLLIER COUNTY LAND DEVELOPMENT CODE 9.03.02 B. 9.03.02 F.3. �-- B. Extension of use in building manifestly designed for such use. Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the effective date of adoption or relevant amendment of the LDC.Any nonconforming use which occupied a portion of a building not originally designed or intended for such use shall not be extended to any other part of the building. No nonconforming use shall be extended to occupy any land outside the building, nor any additional building on the same lot or parcel, not used for such nonconforming use at the effective date of adoption or relevant amendment of the LDC. C. Change in tenancy or ownership.There may be a change in tenancy, ownership, or management of a nonconforming use provided there is no change in the nature or character of such nonconforming use. D. Change in use. If no structural alterations are made, any nonconforming use of a structure, or of a structure and premises in combination may be changed to another nonconforming use of the same character, or to a more restricted nonconforming use, provided the board of zoning appeals, upon application to the County Manager or designee, shall find after public notice and hearing that the proposed use is equally or more appropriate to the district than the existing nonconforming use and that the relation of the structure to surrounding properties is such that adverse effect on occupants and neighboring properties will not be greater than if the existing nonconforming use is continued. In permitting such change, the board of zoning appeals may require appropriate conditions and safeguards in accordance with the intent and purpose of the LDC. E. Movement. No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or relevant amendment of the LDC. F. Discontinuance or destruction. 1. If any such nonconforming use ceases for any reason (except where governmental action impedes access to the premises) for a period of more than 1 year, any subsequent use of land shall conform to the regulations specified by the LDC for the district in which such land is located. 2. Notwithstanding the above definitions of discontinuance relative to a nonconforming use of land or water or structure,where the use of land,water or a structure has ceased for a period of more than 1 year, and where such property or use is deficient in the required amount of paved, striped parking, including parking and access to the structure for the disabled; water management facilities; landscaping;and other site improvements as required in Chapter Four of the LDC, prior to the recommencement of any use of land, water or structure, said deficiencies as may apply shall be remedied, to the greatest extent possible given the physical constraints on the property, via the appropriate administrative processes found in Chapter Ten, or as otherwise required by the LDC. 3. When nonconforming use status applies to a major structure or structures, or to a major structure or structures and premises in combination, removal or destruction of the structure or structure shall eliminate the nonconforming status of the land. "Destruction" of the structure for purposes of this subsection is hereby defined as damage to the extent of more than fifty (50) percent of the replacement cost at the time of the destruction. Upon removal or destruction as set out in this section,the use of land and structures shall therefore conform to the regulations for the district in which such land is located. Supp. No. 12 LDC9:6 VARIATIONS FROM CODE REQUIREMENTS 9.03.02 G. 9.03.03 A.1. G. Repairs and maintenance. On any nonconforming structure or portion of a structure and on any structure containing a nonconforming use, work may be done in any period of twelve (12) consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing to an extent not exceeding twenty (20) percent of the current assessed valuation of the structure (or of the nonconforming portion of the structure if a nonconforming portion of a structure is involved), provided that the cubic content of the structure existing at the date it becomes nonconforming shall not be increased except subject further to the exception provided at section 9.03.03 B., herein. H. Subdivision or structural additions. No land in nonconforming use shall be subdivided, nor shall any structures be added on such land except for the purposes and in a manner conforming to the regulations for the district in which such land is located; provided, however, that subdivision may be made which does not increase the degree of nonconformity of the use. (Ord. No. 12-38, § 3.BB) 9.03.03 Types of Nonconformities A. Nonconforming lots of record. In any district, any permitted or permissible structure may be erected, expanded, or altered on any lot of record at the effective date of adoption or relevant amendment to the LDC. 1. Except as provided herein, the minimum yard requirements in any residential district except RMF-6 shall be as for the most similar district to which such lot of record most closely conforms in area, width and permitted use, except that when possible the greater of any yard requirement in either district shall apply, and except when specifically provided for in the district regulations. a. Rural Agricultural (A) zoning district: i. Front Yard: 40 feet. ii. Side Yard: 10 percent of lot width, not to exceed 20 feet on each side. iii. Rear Yard: 30 feet. b. Estates (E) zoning district: See LDC section 2.03.01 for setbacks. c. RMF-12: i. Single-family dwellings revert to RSF-6 standards. ii. Duplex and multi-family dwellings revert to RMF-6 standards. d. Mobile Home (MH) zoning district: Front Yard: 10 feet. ii. Side Yard:5 feet or zero (0)foot.Where zero is used, the opposite yard must maintain a minimum of 10 feet. iii. Rear Yard: 8 feet. Supp.No.24 LDC9:7 COLLIER COUNTY LAND DEVELOPMENT CODE 9.03.03 A.1. 9.03.03 B. iv. Waterfront Yard (Side or Rear): 10 feet. 2. The minimum side yard requirement in any commercial or industrial district shall be equal to the height of the proposed principal structure, or the minimum side yard requirement in the district, whichever is lesser. 3. Nonconforming through lots, which are nonconforming due to inadequate lot depth, may have a reduced front yard along the local road frontage.The reduction shall be computed at the rate of fifteen (15) percent of the depth of the lot, as measured from edge of the right-of-way. Front yards along the local road shall be developed with structures having an average front yard of not less than six (6) feet; no building thereafter erected shall project beyond the average line.The reduced front yard setback shall be prohibited along a collector or arterial roadway. 4. When two or more adjacent legal nonconforming lots of record are either combined under a single folio or parcel number for taxing purposes by the property appraiser's office, or combined as a single parcel by recording the previously separate non-conforming lots into one legal description, neither or both of these actions will prohibit the owner or future owners from subsequently splitting the parcel into two or more folio or parcel numbers for tax purposes, or severing the parcels into their former legal descriptions as legal nonconform- ing lots of record according to the original legal description(s) at the time the property was recognized as legal nonconforming. Prior to any two or more adjacent legal non- conforming lots being combined for development, a legally binding document must be recorded to reflect a single parcel with a unified legal description.Once such a document has been recorded to amend the legal description and a development permit has been approved by the County for development as that unified parcel, the property cannot be split or subdivided except as may then be allowed by this Code. 5. Nonconforming Corner Lots. Corner lots of record which existed prior to the date of adoption of Collier County Ordinance No. 82-2 [January 5, 1982] and which do not meet minimum lot width or area requirements established in the LDC, shall be required to provide only one full depth front yard.The full depth front yard requirement shall apply to the front yard which has the shorter or shortest street frontage. The setback requirement for the remaining front yard(s) may be reduced to 50 percent of the full front yard setback requirement for that district, exclusive of any road right-of-way or road right-of-way easement. For setbacks for Estates (E) zoning district, see Section 2.03.01. 6. RMF-6 Districts. A two family or duplex dwelling unit may be constructed on any legal non-conforming lot of record when the minimum lot area is 9,750 square feet or greater and an agreement for deed or deed was recorded prior to January 5, 1982 to establish the lot. A single family dwelling unit may be constructed on any legal non-conforming lot of record provided an agreement for deed or deed was recorded prior to January 5, 1982 to establish the lot. B. Nonconforming structures.Where a structure lawfully exists at the effective date of the adoption of this ordinance or relevant amendment that could not be built under the LDC by reason of restrictions Supp.No.24 LDC9:8 VARIATIONS FROM CODE REQUIREMENTS 9.03.03 B. 9.03.03 B.S. on lot area, lot coverage, height, yards, location on the lot, or requirements other than use concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions: 1. No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity;provided,however,that the alteration,expansion,or replacement of nonconform- ing single-family dwellings, duplexes or mobile homes shall be permitted in accordance with section 9.03.03 B.4. 2. Should such nonconforming structure or nonconforming portion of a structure be destroyed by any means to an extent of more than fifty (50) percent of its actual replacement cost at time of destruction, as determined by a cost estimate submitted to the site development review director, it shall not be reconstructed except in conformity with provisions of the LDC. a. Docks and boathouses are not subject to the provisions of Section (B)(2) above. docks and boathouses must be reconstructed to conform to the Code only if the reconstruction of the dock or boathouse will expand or alter the original nonconform- ing facility with regard to deck area, protrusion, setbacks, or the addition of any covered structure, regardless of the percentage of destruction or repairs performed. The determination of legal nonconforming status will be established by presentation of a signed, sealed survey, a copy of the Property Appraiser's record, or other dated photography or documentation showing that the facility existed in its present location and configuration prior to 1990. Any expansion of the facility, no matter how insignificant will void legal nonconforming status and require strict compliance to the Code. 3. Should such structure be moved for any reason for any distance whatever, other than as a result of governmental action, it shall thereafter conform to the regulations for the district in which it is located after it is moved. 4. Nonconforming residential structures, which for the purpose of this section shall mean detached single-family dwellings, duplexes or mobile homes in existence at the effective date of this zoning Code or its relevant amendment and in continuous residential use thereafter, may be altered,expanded,or replaced upon recommendation of the Collier County Planning Commission and approval of the Board of Zoning Appeals by resolution. 5. Notwithstanding the foregoing restrictions as to reconstruction, any residential structure or structures in any residential zone district may be rebuilt after destruction to the prior extent, height and density of units per acre regardless of the percentage of destruction, subject to compliance with the applicable building code requirements in effect at the time of redevelopment. In the event of such rebuilding, all setbacks and other applicable district requirements shall be met unless a variance therefore is obtained from the Board of Zoning Appeals. For the purpose of this section, a hotel, motel, or boatel shall be considered to be a residential structure.Since the size and nature of the alteration, expansion or replacement of such nonconforming structures may vary widely,a site plan, and if applicable,preliminary building plans indicating the proposed alteration, expansion or replacement shall be Supp.No.24 LDC9:9 COLLIER COUNTY LAND DEVELOPMENT CODE 9.03.03 B.5. 9.03.03 C.4. presented with each petition. Prior to granting such alteration, expansion or replacement of a nonconforming single-family dwelling, duplex or mobile home,the Planning Commission and the BCC shall consider and base its approval on the following standards and criteria: a. The alteration, expansion, or replacement will not increase the density of the parcel or lot on which the nonconforming single-family dwelling, duplex, or mobile home is located; b. The alteration, expansion, or replacement will not exceed the building height requirements of the district most closely associated with the subject nonconforming use; c. The alteration, expansion, or replacement will not further encroach upon any nonconforming setback; d. The alteration, expansion, or replacement will not decrease or further decrease the existing parking areas for the structure; e. The alteration, expansion, or replacement will not damage the character or quality of the neighborhood in which it is located or hinder the proper future development of the surrounding properties; and f. Such alteration, expansion, or replacement will not present a threat to the health, safety, or welfare of the community or its residents. C. Requirements for improvements or additions to nonconforming mobile homes. 1. Improvements or additions to nonconforming mobile homes containing conforming uses, in the A agriculture district only, shall be permitted if the addition or improvement complies fully with the setback and other applicable regulations. 2. Issuance and reissuance of building permits when multiple mobile homes are located on a single parcel of land:Where specific zoning districts permit mobile home development and said lands have been substantially developed prior to the effective date of the LDC with multiple mobile homes under singular ownership without an approved site development plan, as required by Chapter Ten of the LDC, no further building permits for the placement or replacement of mobile homes may be obtained except as defined below. 3. Prior to issuance of any building permit for replacement of a mobile home, the property owner or authorized agent shall provide the County Manager or designee, or his designee, with three copies of a scaled drawing of the subject parcel which indicates: a. Proof of building permit issuance for structure being replaced. b. The location of the structure to be replaced and its relationship to adjacent mobile homes and parcel boundaries. 4. Prior to issuance of a building permit for any additional mobile home(s), the applicant or authorized agent shall obtain a site development plan, consistent with Chapter 10 of the LDC.As part of the SDP application, building permit numbers of all existing mobile homes shall be submitted. Supp.No.24 LDC9:10 VARIATIONS FROM CODE REQUIREMENTS 9.03.03 C.5. 9.03.07 C.2. 5. In no case shall the issuance or reissuance of building permits cause the density of the subject parcel to exceed that provided in the density rating system of the GMP or the Immokalee future land use map, except as may be provided in section 9.03.03 B.4. of the LDC. D. Nonconforming signs. See LDC section 5.06.09 for Nonconforming Sign Requirements. (Ord. No. 09-43, § 3.B; Ord. No. 14-33, § 3.Y; Ord. No. 21-25, § 3.D) 9.03.07 Nonconformities Created or Increased by Public Acquisition A. Applicability. 1. For purposes of this section, "acquisition" means any method of acquiring private property for public use, including dedication, condemnation, or purchase. 2. This section applies to the acquisition for present or planned public use by the following party or parties: (i) Collier County; (ii) another governmental entity; (iii) public or private utility companies providing public service; and/or (iv) a private party or parties under agreement with Collier County or other government entity. B. Lot Area 1. Unimproved Lots: If an unimproved lot has sufficient area for the subdivision of three (3) or fewer conforming lots, and part of the lot is acquired for public purpose, then it may be subdivided after the acquisition to the same number of lots that could have been achieved prior to the acquisition. Each newly created lot must contain at least eighty(80) percent of the required minimum lot area. 2. Improved or Unimproved Lots. No conforming lot otherwise qualifying for a lot split or lot line adjustment pursuant to the provisions of this Code may be denied approval solely on the grounds that the resulting lot or lots would be less than the required minimum area for such lot(s) in the applicable zoning district as a result of acquisition,from Feb. 14,2006, if the newly created lots contain at least eighty (80) percent of the required minimum lot area. C. Other Nonconformities: 1. Required yards on improved lots, lot coverage on improved lots, and lot dimensions rendered nonconforming or more legally nonconforming as a result of a portion being acquired for public use, may be reduced by the same dimension, area, or amount involved in the dedication, condemnation, purchase, or similar method of acquisition; and 2. Any structure that is not located within the acquisition area, but is made nonconforming in terms of a required yard or setback as a result of the acquisition, need not be relocated,except as follows: a. The County Manager or designee determines that leaving the structure or a site related condition in its pre-acquisition location may create an unsafe condition, in which case the structure shall be relocated the minimum distance necessary to address the public safety concern or the site related condition shall be modified to a safe condition; and Supp.No.24 LDC9:10.1 COLLIER COUNTY LAND DEVELOPMENT CODE 9.03.07 C.2. 9.03.07 D. b. A front yard of at least ten (10) feet in depth shall be maintained for all building structures. c. The resulting degree of nonconformity of the area and dimensions of a lot and the required yards with this Code's then current requirements are considered lawful unless or until the remaining lot or lots in combination are: (i) recreated or replatted, combining the subject lot or lots with an adjacent lot or lots resulting in a unified plan of development; or (ii) improved such that the value of the proposed improvements are equal to or greater than 50 percent of the total replacement value of the structures and site improvements on the lots or lot combinations existing at the time of improvement. The replacement value shall be calculated by a Florida licensed property appraiser.In the occurrence of either condition (i) or(ii) above, the lot or lots must comply with the requirements then established by this Code or as may be set forth within a PUD if applicable.Otherwise, any legal and conforming site modification or change of use shall not trigger a requirement to bring the nonconformity created by the acquisition into conformance with the then required provisions. 3. Any other site related nonconformity or site related condition resulting from the acquisition, including those rendered more nonconforming, shall be considered legally nonconforming, including stormwater management facilities, landscaping, open space, native vegetation, conservation areas, buffers and preserves, on- or off-site parking, vehicle stacking, throat lengths, or non-structural architectural design standards.All such nonconformities are allowed to remain legally nonconforming and in their existing location(s) and/or configuration(s), provided they continue to function adequately to meet their intended purpose, except where it is determined by the County Manager or designee that such newly created or increased nonconformity or site related condition constitutes an unsafe condition. In those cases where it is determined that the newly created or increased nonconformity or related condition constitutes an unsafe condition, the nonconformity or site related condition shall be relocated or modified in accordance with paragraph 2.a. above, as applicable. In any case, such nonconformities are subject to the limitations set forth in paragraph 2.c., above. D. Post Take Plan. This section addresses the development, review and approval of post-take cure plans for remainder properties to mitigate and/or eliminate the negative and potentially costly impacts resulting from the taking of a property for public purposes. In such cases, it may be determined to be in the public interest to allow some deviations from applicable LDC or PUD provisions, or Conditional Supp.No.24 LDC9:10.2 VARIATIONS FROM CODE REQUIREMENTS 9.03.07 D. 9.03.07 D.4. Use requirements, in order to accommodate site modifications and/or enhancements, designed to cure, remedy, mitigate, minimize or resolve otherwise negative site impacts resultant from public acquisition. 1. The Administrative Code shall establish the submittal requirements for a Post Take Plan and the applicant shall provide the following: a. The boundary or special purpose survey shall be signed and sealed by a professional surveyor and mapper licensed to practice in the State of Florida. b. The appropriate fee as established by the Board of County Commissioners. 2. The property owner or the County may request the following deviations from the LDC, PUD or Conditional Use requirements, as may be applicable: a. Landscape Buffers may be reduced from the required width or depth; but shall not result in a buffer of less than 5 feet in width or depth. Landscape buffers which have been completely eliminated by the acquisition may be replaced beyond the acquisi- tion area; but shall not result in a buffer of less than 5 feet in width or depth. All required plant materials and irrigation requirements shall remain within the reduced buffer area or shall be relocated or installed as a condition of the Post Take Plan approval. b. Water management facilities, including retention, detention and conveyance may occupy up to 75 percent of a landscape buffer width,if there is a minimum remaining planting area of at least 5 feet. c. Required native vegetation,preserve,or open space requirements may be reduced by an amount not to exceed 10 percent. 3. Deviations other than those set forth in paragraphs D.2.a.through D.2.c.above, or exceeding the minimums or maximums established therein, may also be approved, subject to the following procedures: a. In addition to the requirements for submittal of a Post Take Plan established in the Administrative Code within 60 days of the date of submittal of the Post Take Plan to Collier County the applicant shall also notify property owners in accordance with notice procedures established in LDC section 10.03.06 S, as may be applicable. b. The notice shall: (1) list the requested deviations other than those set forth in paragraph 2, above, or exceeding the minimums and maximums established in that subsection; (2) provide a brief narrative justification for such deviation(s); and (3) provide a copy of the Post Take Plan (in 11 by 17 inch or 8.5 by 11 inch format). 4. Approval Criteria and Process. a. If no written objection is received within 30 days of the date of mailing of the notice, the Post Take Plan is deemed approved. b. If an abutting property owner who receives a notice submits a written objection to Collier County within 30 days of the date of mailing of notice, the matter shall be Supp. No. 11 LDC9:11 COLLIER COUNTY LAND DEVELOPMENT CODE 9.03.07 D.4. 9.04.01 A. scheduled for public hearing before the Collier County Planning Commission (CCPC). In such cases, the Board of County Commissioners delegates the authority to review the Post Take Plan to the CCPC and includes this review as part of the CCPC powers and duties under the Collier County Code of Laws and Ordinances section 2-1156 -2-1164. Public notice for the hearing shall comply with LDC section 10.03.05 C, as may be applicable, and shall specifically note the location of the property and the requested deviations. The CCPC, in considering whether to approve, approve with conditions, or deny the proposed Post Take Plan, shall consider the following: Whether the deviation is the minimum amount necessary to mitigate for the impacts of the acquisition, while still protecting the public health, safety, and welfare; and ii. Whether the County or property owner has or will mitigate for impacts from the requested deviation(s) on neighboring properties by maintaining or enhancing compatibility through various measures, including but not limited to the installation of additional landscape plantings or the installation of fences or walls; and iii. Whether the requested deviations are consistent with and further applicable policies of the GMP and the requirements of the LDC, PUD, or Conditional Use, as may be applicable. 5. Within 30 days of approval, approval with conditions, or denial of a Post Take Plan by the CCPC, the applicant, affected property owner, or abutting property owner may appeal the decision to the Board of Zoning Appeals. For the purposes of this section, an aggrieved or adversely affected party is defined as any person or group of persons which will suffer an adverse effect to any interest protected or furthered by the Collier County Growth Manage- ment Plan, Land Development Code,or building code(s). If an appeal is filed by an abutting property owner, and said appeal is successful, Collier County shall reimburse said appellant for the appeal application fee and any associated advertising costs. E. This section (9.03.07) applies to acquisitions which occurred prior to the adoption of this ordinance if the purchase or dedication of the property has not closed, or the condemnation proceeding relating to the property acquired has exhausted all available appeals. (Ord. No. 08-63, § 3.GG; Ord. No. 13-56, § 3.GG) 9.04.00 VARIANCES 9.04.01 Generally A. Purpose. In specific cases, variance from the terms of the LDC may be granted where said variance will not be contrary to the public interest, safety, or welfare and where owing to special conditions peculiar to the property, a diminution of a regulation is found to have no measurable impact on the public interest, safety or welfare; or a literal enforcement of the LDC would result in unnecessary and undue hardship, or practical difficulty to the owner of the property and would otherwise deny the property owner a level of utilization of his/her property that is consistent with the development pattern in the neighborhood and clearly has no adverse effect on the community at large or neighboring property owners. Supp. No. 11 LDC9:12 VARIATIONS FROM CODE REQUIREMENTS 9.04.01 B. 9.04.03 H. B. Historic Places. Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this section. C. For specific procedures associated with Variances, please see section 10.09.00 of the LDC. (Ord. No. 05-27, § 3.QQ) 9.04.02 Types of Variances Authorized A variance is authorized for any dimensional development standard, including the following: height, area, and size of structure; height of fence; size of yards and open spaces; dimensional aspects of landscaping and buffering requirements;size, height, maximum number of,and minimum setback for signs;and minimum requirements for off-street parking facilities. A. Variances for signs. The variance procedure for signs is provided in section 5.06.00, the Collier County Sign Code. (Ord. No.06-07, § 3.Q; Ord. No. 09-43, § 3.B; Ord. No. 12-38, § 3.CC) 9.04.03 Criteria for Variances Findings. Before any variance shall be recommended for approval to the board of zoning appeals, the planning commission shall consider and be guided by the following standards in making a determination: A. There are special conditions and circumstances existing which are peculiar to the location, size, and characteristics of the land, structure, or building involved. B. 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. C. A literal interpretation of the provisions of the LDC work unnecessary and undue hardship on the applicant or create practical difficulties on the applicant. D. 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. E. 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. F. 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. G. 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. H. Granting the variance will be consistent with the GMP. (Ord. No. 05-27, § 3.QQ) Supp.No.21 LDC9:13 COLLIER COUNTY LAND DEVELOPMENT CODE 9.04.04 9.04.04 C.2. 9.04.04 Specific Requirements for Minor After-the-Fact Encroachment Minor after-the-fact yard encroachments for structures, including principal and accessory structures, may be approved administratively by the County Manager or designee. Exceptions to required yards as provided for within LDC section 4.02.01 D.shall not be used in the calculations of existing yard encroachments. A. For both residential and non-residential structures the County Manager or designee may administratively approve minor after-the-fact yard encroachments of up to five (5) percent of the required yard, not to exceed a maximum of six (6) inches when a building permit has been issued and a certificate of occupancy has not been granted.The encroachment applies to the yard requirement in effect as of the date the building permit was issued. B. For both residential and non-residential structures,the County Manager or designee may administratively approve minor after-the-fact yard encroachments of up to ten percent of the required yard with a maximum of two feet when a building permit and certificate of occupancy has been granted. The encroachment applies to the yard requirement in effect as of the date the building permit was issued. 1. Exception.Residential structures shall be deemed compliant with the applicable development standards and no variance shall be required when the following additional conditions apply: a. The building permit and certificate of occupancy were approved in compliance with the required setbacks in effect at that time; b. The encroachment does not exceed three inches into the required yard; c. The only portion of the structure encroaching into the required yard is the exterior wall treatment; and d. The required structure to structure separation, as identified in LDC section 4.02.03, is satisfied. C. For property supporting a single-family home, two-family home, duplex, mobile home or modular home, the County Manager or designee may administratively approve encroachments of up to twenty-five (25) percent of the required yard in effect as of the date of the building permit when one of the following conditions exists: 1. In the presence of mitigating circumstances, where the encroachment does not result from error or action on the part of the property owner and a building permit has been issued. 2. Where no building permit record can be produced and the following criteria are met: a. An after-the-fact building permit for the structure, or portion of the structure, is issued prior to the approval of the administrative variance. The administrative variance will only be approved once all inspections have been completed. The certificate of occupancy shall be placed on hold until the administrative variance is approved. b. The encroaching structure, or portion of the structure, was constructed prior to the purchase of the subject property by the current owner. Supp.No.21 LDC9:14 VARIATIONS FROM CODE REQUIREMENTS 9.04.04 C.2. 9.04.05 A.3. c. Evidence is presented showing that the encroaching structure, or portion of the structure, was constructed at least two (2) years prior to the date of application for the administrative variance.This evidence may be in the form of a survey, property card, or dated aerial photograph clearly showing the encroachment. d. The encroaching structure is either an addition of living area to a principal structure, or an accessory structure of at least two hundred (200) square feet in area. e. The encroachment presents no safety hazard and has no adverse affect on the public welfare. D. Where a structure was lawfully permitted within a residential zoning district under a previous code, and where said structure is considered nonconforming under the current Land Development Code, due to changes in the required yards, the County Manager or designee may administratively approve a variance for an amount equal to or less than the existing yard encroachment. E. Under no circumstances shall any administrative variance be approved which would allow a reduction of the separation between structures to less than ten (10) feet. F. Administrative variances approved pursuant to the above do not run with the land in perpetuity and remain subject to the provisions of this section regarding nonconforming structures. (Ord. No. 06-63, § 3.00; Ord. No. 16-27, § 3.U; Ord. No. 18-18, § 3.N; Ord. No.20-16, § 3.J) 9.04.05 Specific Requirements for Variances to Flood Hazard Protection Requirements A. General requirements. 1. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. 2. Variances shall only be issued upon: a. A showing of good and sufficient cause. b. A determination that failure to grant the variance would result in exceptional hardship to the applicant. c. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. 3. In passing upon a variance, the Board of Zoning Appeals shall consider all technical evaluations, all relevant factors, standards specified in other sections of the LDC; and the following criteria: a. The danger that materials may be swept onto other lands to the injury of others; b. The danger to life and property due to flooding or erosion damage; Supp.No.21 LDC9:15 COLLIER COUNTY LAND DEVELOPMENT CODE 9.04.05 A.3. 9.04.06 B. c. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; d. The importance of the services provided by the proposed facility to the community; e. The necessity to the facility of a waterfront location, where applicable; f. The availability of alternative locations, not subject to flooding or erosion damage,for the proposed use; g. The compatibility of the proposed use with existing and anticipated development. h. The relationship of the proposed use to the GMP and flood plain management program for the area; The safety of access to the property in times of flood for ordinary and emergency vehicles; j. The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; k. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, water systems, streets, and bridges, and; I. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result. m. Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a function- ally dependent use provided that the criteria of (a) through (I) of this section are met. n. Generally, variances may be issued for new construction and substantial improve- ments to be erected on a lot of one-half (1/2) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing items (a) through (I) have been fully considered. 9.04.06 Specific Requirements for Variance to the Coastal Construction Setback Line A. The coastal construction setback line shall be that coastal construction setback line established by the DEP of the State of Florida pursuant to F.S.§ 161.053 and recorded in Coastal setback line Book 1, pages 1 through 12 inclusive, recorded October 31, 1974, as Clerk's Instrument No.365665 of the public records of Collier County, Florida. B. Setback lines established under this LDC shall be reviewed upon petition of affected riparian upland owners.The BCC of Collier County shall decide,after due public notice and hearing,whether a change in the setback line is justified, and shall notify the petitioner in writing.The present setback lines are presumed to be correct, and no change in setback lines are presumed to be correct, and no change in setback lines shall be made except upon an affirmative showing by petitioner that any construction line established hereunder is a minimum of 150 feet landward of the mean high-water line or Supp.No.21 LDC9:16 VARIATIONS FROM CODE REQUIREMENTS 9.04.06 B. 9.04.06 C. seventy-five(75)feet landward of the vegetation line whichever is greater;and that considering ground elevations in relation to historical storm and hurricane tides, predicted maximum wave uprush, beach and offshore ground contours, the vegetation line, erosion trends, the dune or bluff line, if any exist, and existing upland development, that the general public health and welfare are preserved, upland properties protected, and beach and sand dune erosion controlled. C. It shall be unlawful for any person, firm, corporation, or agency, public or private, to construct, reconstruct, or change existing structures, make any excavation, remove any beach material or otherwise alter existing ground elevations, drive any vehicle on, over or across any sand dune, or damage or cause to be damaged any sand dune, or the vegetation growing thereon and/or seaward of said dune, seaward of the coastal construction setback line, except as hereinafter provided. Supp.No.24 LDC9:16.1 VARIATIONS FROM CODE REQUIREMENTS 9.04.06 D. 9.04.06 G.2. D. If in the immediate contiguous or adjacent area a"number of existing structures" have established a reasonably continuous and uniform construction line closer to the line of mean high water than the line as herein established, and if said existing structures have not been unduly affected by erosion, a proposed structure may be permitted along such line if such proposed structure is also approved by the BCC. E. The BCC may authorize the construction of pipelines or piers extending outward from the shoreline, unless it determines that the construction of such projects would cause erosion of the beach in the area of such structures. F. Reserved. G. Procedures for obtaining variance. 1. A written petition requesting a variance from the established setback line shall be filed with the BCC or their designee.The petition shall set forth: a. A description of petitioner's property to include the information requested on a current Collier County request for a coastal construction setback line variance form; b. A description of the established setback line and the line which petitioner wishes to be varied; c. The justification upon which the petitioner relies for the granting of the variance, to include compliance with the Collier County growth management plan, conservation and coastal management element. 2. Notice and public hearing for coastal construction setback line variances.An application for coastal construction setback line (CCSL)variance shall be considered by the BCC pursuant to the following public notice and hearing requirements. a. The applicant shall post a sign at least 45 days prior to the date of the public hearing by the BCC.The sign shall contain substantially the following language and the sign copy shall utilize the total area of the sign: PUBLIC HEARING REQUESTING CCSL VARIANCE APPROVAL(both to contain the following information:) TO PERMIT: (Sufficiently clear to describe the type of variance requested). DATE: TIME: TO BE HELD IN BOARD OF COUNTY COMMISSIONERS MEETING ROOM, COL- LIER COUNTY GOVERNMENT CENTER. b. The area of a property sign shall be as follows: i. For a property less than one acre in size,the sign shall measure at least one and one-half square feet in area. Supp.No.15 LDC9:17 COLLIER COUNTY LAND DEVELOPMENT CODE 9.04.06 G.2. 9.04.06 G.4. For a property one acre or more in size, the sign shall measure at least 32 square feet in area. c. In the case of a sign located on a property less than one acre in size, such sign shall be erected by the County Manager or his designee in full view of the public on each street side of the subject property and on the side of the property visible from the beach.Where the property for which approval is sought is landlocked or for some other reason a sign cannot be posted directly on the subject property,then the sign shall be erected along the nearest street right-of-way, with an attached notation indicating generally the distance and direction to the subject property. d. In the case of sign(s)located on a property one acre or more in size,the applicant shall be responsible for erecting the required sign(s).The sign(s) shall be erected in full view of the public on each street upon which the subject property has frontage and on the side of the property visible from the beach. Where the subject property is landlocked, or for some other reason the sign(s) cannot be posted directly on the property,then the sign(s)shall be erected along the nearest street right-of-way,with an attached notation indicating generally the distance and direction to the subject property.There shall be at least one sign on each external boundary which fronts upon a street, however, in the case of external boundaries along a street with greater frontages than 1,320 linear feet, signs shall be placed equidistant from one another with a maximum spacing of 1,000 linear feet, except that in no case shall the number of signs along an exterior boundary fronting on a street exceed four signs. The applicant shall provide evidence to the County Manager or designee that the sign(s) were erected by furnishing photographs of the sign(s) showing the date of their erection at least ten days prior to the scheduled public hearing by the BCC.The sign(s) shall remain in place until the date of either of the following occurrences: 1. Final action is taken by the BCC;or 2. The receipt of a written request by the County Manager or designee from the applicant to either withdraw or continue the petition indefinitely. e. Notice of the time and place of the public hearing by the BCC shall be advertised in a newspaper of general circulation in the county at least one time and at least 15 days prior to the public hearing. Where applicable, the notice shall clearly describe the proposed variance.The advertisement shall also include a location map that identifies the approximate geographic location of the subject property. f. The BCC shall hold one advertised public hearing on the proposed variance and may, upon the conclusion of the hearing, immediately adopt the resolution approving the variance 3. The BCC shall notify petitioner in writing of its decision within 15 days of the public hearing. 4. Any person aggrieved by a decision of the BCC granting or denying a variance may apply to the circuit court of the circuit in which the property is located for judicial relief within 30 days after rendition of the decision by the BCC.Review in the circuit court shall be by petition for a writ of certiorari and shall be governed by the Florida Appellate Rules. Supp.No.15 LDC9:18 VARIATIONS FROM CODE REQUIREMENTS 9.04.06 H. 9.04.07 H. Exemptions. Exemptions shall be reviewed administratively for compliance with applicable county codes, and shall not be heard by the BCC. Exemptions to this section 9.04.06 shall include: 1. The removal of any plant defined as exotic vegetation by county code. 2. Any modification, maintenance,or repair,to any existing structure within limits of the existing foundation or footprint,which does not require, involve,or include any additions to,or repair or modifications of, the existing foundation of that structure,except those modifications required by code, excluding additions or enclosure added, constructed, or installed below the first dwelling floor or lowest deck of the existing structure. 3. Any structures,that:1)do not constitute fixed structure(s),2)do not require a building permit, 3) weigh less than 100 pounds, and 4) upon review by the County Manager or his designee does not present an actual or potential threat to the beach and the dune system and adjacent properties are exempt from the variance requirements of this section.This exemption shall not be effective during sea turtle nesting season (May 1—October 31) unless the structures are removed daily from the beach prior to 9:30 p.m. and are not moved onto, or placed on, the beach before completion of monitoring conducted by personnel with prior experience and training in nest surveys procedures and possessing a valid Fish and Wildlife Conservation Commission Marine Turtle Permit(daily sea turtle monitoring),or unless the beach furniture is being actively used or attended during the period of time from 9:30 pm until the next day's monitoring.Exemptions allowed under this provision are not intended to authorize any violation of F.S.§370.12, or any of the provisions of the Endangered Species Act of 1973, as it may be amended. (Ord.No.05-27, §3.QQ) 9.04.07 Reserved Editor's note—Ord.No.13-56,§3.HH,adopted September 24,2013, repealed§9.04.07,which pertained to specific requirements for waiver of automobile service station distance requirements.See Land Development Ordinance Disposition Table for complete derivation. L Supp.No.15 LDC9:19