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HEX Final Decision 2021-59 HEX NO. 2021-59 HEARING EXAMINER DECISION DATE OF HEARING. October 28,2021 PETITION. PETITION NO. VA PL20190001162 - Request for after-the-fact variances to allow a pool that encroaches 4.35 feet and spa that encroaches 1.45 feet into the required 30-foot western side yard setback; and to allow an accessory garage that encroaches 22.4 feet into the required 75-foot rear yard setback; and to allow the carport encroaching 6.45 feet into the required 30-foot eastern side yard setback; and to allow the home encroaching 0.1 foot into the required 30-foot western side yard setback as provided for in Land Development Code Section 4.02.01 for the Estates (E)zoning district. The subject property is 2035 Golden Gate Boulevard West, in Section 6, Township 49 South, Range 27 East, Collier County,Florida GENERAL PURPOSE FOR THE PETITION. The variance request is for after-the-fact allowance to encroach into setbacks for the following structures: • Pool encroachment of 4.35 feet and spa encroachment of 1.45 feet into the required 30- foot western side yard setback. • Detached garage encroachment of 22.4 feet into the required 75-foot rear yard setback. • Carport encroachment of 6.45 feet into the required 30-foot eastern side yard setback. • Home encroachment of 0.1 foot into the required 30-foot western side yard setback. 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. Page 1 of 6 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. 5. The applicant sent a notification letter by certified mail on July 14, 2021, to four property owners within 150 feet of the subject site. Public notice was provided about the October 28, 2021, Hearing Examiner Hearing by posting of a public hearing notice sign on the property, mailing of notices to owners within 1,000 feet of the subject site, and publication of a newspaper advertisement at least 15 days prior to the hearing. 6. The County representative introduced the Petition and staff recommendations, followed by Petitioner and/or Petitioner's representative, and then public comment. 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.I 1. Are there special conditions and circumstances existing,which are peculiar to the location, size and characteristics of the land, structure or building involved? The record evidence and testimony from the public hearing reflects that the encroachments are already constructed. It can be seen on the aerial imagery that lot sizes generally range in size similar to the subject site which is 2.34 acres. This lot area conforms with the minimum lot size for the Estates zoning district of 2.25 acres. It is also a common condition in the immediate vicinity for homesites to include additional structures in proximity to rear and side yards. The encroachments of the home and the carport into side yards were revealed by the survey. Given that records show the home was permitted in 1979, the encroachment of the home and carport by 0.1 feet and 6.45 feet respectively are as much as forty-two years old Side yard setback requirements in the Estates district at that time were 10% of the property width, not to exceed 30 feet. Records could not be found to determine the width of the property in 1979; it is now 150 feet wide and has been since at least 1994. The pool and the rear garage have been added by the applicant within the past sixteen years. The pool was subject to the permitting process, and although the plans submitted at the time indicated a setback of 30 feet, it is revealed by survey that the pool and spa encroach by 4.35 feet and of 1.45 feet respectively into the required 30 foot western side yard setback, thus an after-the-fact variance is requested The rear detached garage is the greatest encroachment at 22.4 feet into the required 75-foot rear yard setback. The home itself is built on the rear half of the property with a front yard setback of over 400 feet. This unique positioning of the home so far back on the site may be a factor in the positioning of the rear detached garage, because it leaves less than the typical amount of space on an Estates zoned lot to position an accessory structure in the rear. 1 The Hearing Examiner's findings are italicized. Page 2 of 6 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 owner will hire a pool company (POOL-TEC) to do all paperwork and build the pool with the permit number 2005091242, all inspection was passed in compliance with the required building code, and he assume everything was fine until was notified for the code enforcement that spa is encroaching into the setback. Owner bought the house in 2001 with existing structure at rear of the lot which was destroyed by the hurricane in 2006 and after that hire a company to install in same place a new metal building, attached pre-engineered metal building plans. The company never requested a Collier County building permit without notification to owner.As stated in the analysis for criterion "1, "the pool variance is a corrective after-the-fact request for the permitted improvements based on encroachments revealed by the survey of the site. No records were found for permitting of the rear garage building. The building is positioned to the rear of the pre-existing home, which is set back over 400 feet from the front property line. The position of the pre-existing home leaves less than the typical amount of space on an Estates zoned lot to position an accessory structure in the rear. While it is feasible to position the garage to conform with the 75-foot setback, the position of the home on the rear half of the lot may be a factor in how the garage was located. 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 his is an after-the- fact Variance request as the structure has already been done. The applicant suggests there is hardship and practical difficulties in requiring the applicant to conform and ultimately demolish and re-construct the improvements on the site. It should be noted that the applicant has agreed to remove unpermitted construction to the extent possible, by removing the unpermitted construction associated with the pigeon coop and removing the woodshed building near the well along the western property line. 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 granting of the requested variance will not have adverse impact to health, safety, and welfare. The variance if granted will be the minimum required to allow for the site to function within its existing building footprints and will not be detrimental to health, safety, and welfare. 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? Page 3 of 6 The record evidence and testimony from the public hearing reflects that by definition, 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 standard. As such, other properties facing a similar hardship would be entitled to make a similar request and would be conferred equal consideration by case basis. The granting of the variance does convey a unique privilege upon the property in comparison to similarly zoned properties that are compliant with setback requirements but based upon the circumstances of the home dating as far back as forty years and positioned over 400 feet from the front property line, staff finds these unique circumstances as justified in granting the variance for the encroachments of the home, carport, and rear garage. The pool and spa were assumed to meet setbacks as shown on plans during the permitting process, and it does not confer any special privilege to the applicant to grant variances for the encroachments revealed by surveying the site. The granting of the variance will result in the home remaining over 23 feet from the side property lines, the pool and spa remaining over 25 from the west property line, and the garage remaining over 52 feet from the rear property line. 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 Variance will be in harmony with the general intent and purpose of the Land Development Code and will not harm public safety, health, and welfare. The Land Development Code generally intends to allow for the types of structures and improvements that are subject of these variance requests. It is also a common condition in the immediate vicinity for homesites to include additional structures in proximity to rear and side yards, so the granting of the variance is not injurious to the neighborhood. 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 no natural or physically induced conditions have been observed that will serve to ameliorate the goals and objectives of the LDC. The goals and objectives of established setbacks are not ameliorated by any natural or physical conditions present in the context of the site. 8. Will granting the Variance be consistent with the GMP? The record evidence and testimony from the public hearing reflects that approval of this Variance will not affect or change the requirements of the GMP with respect to density, intensity, compatibility, access/connectivity, or any other applicable provisions. The GMP is silent to the issuance of a variance application and therefore the granting of the variance will not be inconsistent with the GMP. Page 4 of 6 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-PL20190001162, filed by Yoalys Martin, representing Vladimir Portal & Caridad Diaz, with respect to the property described as 2035 Golden Gate Blvd West, in Section 6, Township 49 South, Range 27 East, Collier County, Florida, for the following: • An application for after-the-fact variances to allow a pool that encroaches 4.35 feet and spa that encroaches 1.45 feet into the required 30-foot western side yard setback; and to allow an accessory garage that encroaches 22.4 feet into the required 75-foot rear yard setback; and to allow the carport encroaching 6.45 feet into the required 30-foot eastern side yard setback; and to allow the home encroaching 0.1 foot into the required 30-foot western side yard setback as provided for in Land Development Code Section 4.02.01 for the Estates (E)zoning district. Said changes are fully described in the Survey attached as Exhibit "A" are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A—Survey LEGAL DESCRIPTION. 2035 Golden Gate Blvd West, in Section 6, Township 49 South, Range 27 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 Page 5 of 6 fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. APPEALS. This decision becomes effective on the date it is rendered. An appeal of this decision shall be done in accordance with applicable ordinances, codes and law. RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES. November 24, 2021 Date Andrew Dickman, Esq., AICP Hearing Examiner Page 6 of 6 EXHIBIT "A" BOUNDARY AND TOPOGRAPHIC SURVEY SCALE ---):--T- PROPERTYRTY ADDRESS: 2035 GOLDEN GATE BOULEVARD WEST, NAPLES,FLORIDA,34120 1T11r1• PARCEL No 36914160000 75e TRACT 62 L-4 LEGAL DESCRIPTION: ns SAYar A c -r� V/1I THE WES!150 FEET OF TRACT 64, GOLDEN GATE ESTATES, UNIT 7,ACCORDING TO THE PIA) /nor nl a rIR u oral THEREOF,AS RECORDED IN PLAT BOOK 4,PAGE(S)95 AND 96,INCLUSIVE, OF THE PUBLIC ( R Ili RECORDS OF COLLIER COUNTY, FLORIDA NOIE(5): 1�' lad' �( I-This boundary survey nos prepared without Ike benefit or a commitment la We insuronre,legal description gvh4:4 IL provide by owner. Ile 1-Unless shown,underground ulilies,improvements,foundations and/or subsoeloce stmdures rere not located �X' Ir by this boundary surrey. I7 3-Bearings are based on the center One of GOLDEN GATE 8014,LVAR)NEST hovug a bearing of N 89'4050'W per recorded plot book 4.page 95. i 4-The tond(s)shown hereon we not ebslrocled for easements or other recorded encumbrances that mq be found in the pubic records of the county. moo 5-The erpeeted use of the land,as class Zed in the standards of practise(5r-17.051),is rurol'.the minimum 1 relative dislance unwary for this type of boundary scary is I fool in 5,000 feet The accuracy obtained by { Wood measurement and calculation of a closed geometsc figure Nos found to eoeced this requirement. �1�--� 6-Dimensions are in feet and decimals thereof. t A ; 7-Adltifions or deletions to surrey mops or reports by other than the signing party or parties is profvbited Mthout (I )_�1 mitten consent of signing parry or parties. I., L�-`J�'�', -ALffi- 5i 8-If Aare is a septic lank,a drain field sham on this survey,the location isaprnrimate,and wasdeternuned by min- • L' DETAIL-1 • N min, visual above ground inspection only and cannot be relied on for accuracy. 30' .Cr-; 3 30' WELL TO SEP.•116'1 N 9 WELL 10 RES.=106'3 8 I — .1 SEEP.ID RES.•5't z s y- L-I L-2 L-3 L-4 Kosc at I 330.00'(P)&(M) 150.00'(P)&(M) 150.00'(P)&(M) 150.00' S 89'40 50"E(P) Zoi N 89'40'50"W N 89'4030"W N 89'40'50"W 149.81' N 89'39'29"E(M) 170' to be removed _,L grs' 9 ` DETAIL-1 NOT ro SCALE . W 180'of I ; I eN r—A a c ]W TRACT 64 o .�r car.aid Derk $ ch \ Cook aid a aMk •/ 2 I - 51 iI g III �5A00' Oak gj;_..zjL 4 8Case Mir W` 61u. I 1 RI f 'k, z �,$ I Remainder co.AosA . TRACT •Rg ONE STORYLIFAMILYF I I 64 SINGLE FAY RESIDENCE q N /2035 25.90• TRACT taw ! Li ally 63 ya . 0.e. 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COMMUNITY PANEL NUMBER SUFFIX: lbw a n ��++y�,,r ON...N` rW sic end sib m s4 et ands aee;•I1,lrJM. 120067 0410 I N n a..���� erlY�NmMve.ro KareM al®mlrrAsa um® EXHIBIT "A"