HEX Final Decision 2021-57 HEX NO. 2021-57
HEARING EXAMINER DECISION
DATE OF HEARING.
October 28,2021
PETITION.
PETITION NO.VA-PL20210000098-Request for a variance from Section 5.03.06.E.5 of the
Land Development Code to reduce the required side yard/riparian setback for dock facilities
on lots with water frontage of 60 feet or greater from 15 feet to 5 feet for a lot with 113± feet
of water frontage located within the residential component of the Lely Barefoot Beach
Planned Unit Development, Ordinance No. 77-48, as amended, at 219 Malibu Cove and
further described as Lot 19, Southport on the Bay Unit 1, in Section 6, Township 48 South,
Range 25 East, Collier County,Florida
GENERAL PURPOSE FOR THE PETITION.
The petitioner requests to replace an existing dock with a new dock facility that has been designed
to accommodate a larger 43-foot vessel. As proposed, the new dock facility will encroach 10 feet
into the otherwise required 15- foot side/riparian setback on the east side. Dock protrusion is the
subject of a companion Boat Dock Extension petition, BDE-PL20210000039.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(2) of the
Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of
the County Administrative Code.
2. The public hearing for this Petition was properly noticed and conducted in accordance with all
County and state requirements.
3. The public hearing was conducted electronically and in-person in accordance with
Emergency/Executive Order 2020-04.
4. The Petitioner and/or Petitioner's representative executed the Hybrid Virtual Quasi-Judicial
Public Hearing Waiver related to conducting the public hearing electronically and in-person.
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5. This Petition is a companion to Petition No. BDE-PL20210000039,to allow the proposed boat
dock facility to protrude a total of 63 feet into a waterway that is 325± feet wide.
6. The County representative introduced the Petition and staff recommendations, followed by
Petitioner and/or Petitioner's representative, public comment and then rebuttal by the
Petitioner and/or Petitioner's representative. There were no objections to the Petition at the
public hearing.
7. The County's Land Development Section 9.04.03 lists the criteria for variances. The Hearing
Examiner having the same authority as the Board of Zoning Appeals may grant,deny or modify
any request for a variance from the regulations or restrictions of the Collier County Land
Development Code.'
1. Are there special conditions and circumstances existing,which are peculiar to the location,
size and characteristics of the land, structure or building involved?
The record evidence and testimony from the public hearing reflects that the shape of the
shoreline and existence of a Conservation Easement limit dock design options as does the
existence of neighboring dock facilities. The petitioner has designed the proposed facility
with all the aforementioned circumstances considered, including the desire not to impede
the use of neighboring dock facilities.
2. Are there special conditions and circumstances, which do not result from the action of the
applicant such as pre-existing conditions relative to the property, which are the subject of
the Variance request?
The record evidence and testimony from the public hearing reflects that the property's
natural shoreline, shape of the shoreline, and Conservation Easement necessitated the
additional protrusion (Subject of companion BDE) due to the pie-shaped riparian lines.
The proposed dock has been designed to compensate for the above and to accommodate
the desired vessel size of 43 feet.
3. Will a literal interpretation of the provisions of this zoning code work unnecessary and
undue hardship on the applicant or create practical difficulties for the applicant?
The record evidence and testimony from the public hearing reflects that a literal
interpretation of the Code would compel a smaller dock, thereby creating practical
difficulties for the applicant with respect to the docking of a 43 foot vessel.
4. Will the Variance, if granted, be the minimum Variance that will make possible the
reasonable use of the land, building or structure and which promote standards of health,
safety, and welfare?
The record evidence and testimony from the public hearing reflects that with exception to
the decked over lift, there is no excess decking. As for the decked over lift, the applicant
i The Hearing Examiner's findings are italicized.
Page 2 of 5
has explained that it is to be a platform for kayaks and paddleboards, said lift is not the
offending portion of the proposed dock with respect to the side/riparian Variance request.
5. Will granting the Variance confer on the applicant any special privilege that is denied by
these zoning regulations to other lands,buildings,or structures in the same zoning district?
The record evidence and testimony from the public hearing reflects that a variance bestows
some dimensional relief from the zoning regulations specific to a site. LDC Section 9.04.02
allows relief through the variance process for any dimensional development standard.
However, other properties facing a similar situation are entitled to make a similar request
and would be conferred equal consideration on a case-by-case basis.
6. Will granting the Variance be in harmony with the general intent and purpose of this Land
Development Code, and not be injurious to the neighborhood, or otherwise detrimental to
the public welfare?
The record evidence and testimony from the public hearing reflects that the granting of the
subject variance request will be in harmony with the general intent and purpose of the LDC
and will not be injurious to the neighborhood or otherwise detrimental to the public
welfare.
7. Are there natural conditions or physically induced conditions that ameliorate the goals and
objectives of the regulation such as natural preserves, lakes, golf courses, etc.?
The record evidence and testimony from the public hearing reflects that the subject docking
facility is uniquely situated and compensates for existing dock facilities as well as an
existing Conservation Easement.
8. Will granting the Variance be consistent with the GMP?
The record evidence and testimony from the public hearing reflects that his Variance will
not affect or change the requirements of the GMP with respect to density, intensity,
compatibility, access/connectivity, or any other applicable provisions.
ANALYSIS.
Based on a review of the record including the Petition, application, exhibits, the County's staff
report, and hearing comments and testimony from the Petitioner and/or the Petitioner's
representative(s), County staff and any given by the public,the Hearing Examiner finds that there
is enough competent, substantial evidence as applied to the criteria set forth in Section 9.04.03 of
the Land Development Code to approve Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition No. VA-PL20210000098, filed by Jeff
Rogers of Turrell, Hall &Associates, Inc., representing Michael and Ellen Fasching,with respect
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to the property described as 219 Malibu Cove, located at the southwest corner of San Mateo Drive
and Malibu Cove. Said property is identified as Lot 19, Southport on the Bay Unit One, in Section
6, Township 48 South, Range 25 East. Collier County, Florida, for the following:
• A variance from Section 5.03.06.E.5 of the Collier County Land Development Code, to
reduce the required side/riparian setback for dock facilities on lots with water frontage of
60 feet or greater from 15 feet to 5 feet for a lot with 113± feet of water frontage, for the
benefit of the subject property.
•
Said changes are fully described in Proposed Dock Plans attached as Exhibit "A" are subject to the
condition(s) set forth below.
ATTACHMENTS.
Exhibit A—Proposed Dock Plans
LEGAL DESCRIPTION.
219 Malibu Cove, located at the southwest corner of San Mateo Drive and Malibu Cove. Said
property is identified as Lot 19, Southport on the Bay Unit One, in Section 6, Township 48 South,
Range 25 East. Collier County, Florida
CONDITIONS.
All other applicable state or federal permits must be obtained before commencement of the
development.
DISCLAIMER.
Pursuant to Section 125.022(5)F.S., issuance of a development permit by a county does not in any
way create any rights on the part of the applicant to obtain a permit from a state or federal agency
and does not create any liability on the part of the county for issuance of the permit if the applicant
fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or
undertakes actions that result in a violation of state or federal law.
APPEALS.
This decision becomes effective on the date it is rendered. An appeal of this decision shall be done
in accordance with applicable ordinances, codes and law.
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RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES
AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR
VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE
NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES.
i
November 24, 2021
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 5 of 5
EXHIBIT "A"
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