HEX Final Decision 2021-63 HEX NO. 2021-63
HEARING EXAMINER DECISION
DATE OF HEARING.
November 12, 2021
PETITION.
PETITION NO.BDE-PL20200001868 153 Venus Cay Bertolino Leipold Dock-Request for
a 15-foot boat dock extension over the maximum permitted protrusion of 20 feet for
waterways greater than 100 feet in width, to allow construction of a boat docking facility
protruding a total of 35 feet into a waterway that is 196±feet wide, pursuant to LDC Section
5.03.06. The subject property is located at 153 Venus Cay, further described as Lot 65, Port
of the Islands (The Cays) Phase II, in Section 9, Township 52 South, Range 28 East, Collier
County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The petitioner requests to construct a boat docking facility that will protrude 15 feet beyond the
allowable 20 foot protrusion into a waterway that is 196± feet, that will accommodate two boat
slips, each with a lift, for two 25-foot vessels.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(4) 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.
5. The County Staff presented the Petition followed by the Petitioner and/or Petitioner's
representative, public comment and then rebuttal by the Petitioner and/or Petitioner's
representative. There was an objection made to the Petition by a neighboring lot owner at the
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public hearing and several letters objecting to the Petition were submitted prior to the public
hearing.
6. The County's Land Development Code Section 5.03.06.H. lists the criteria for dock facility
extensions. The Hearing Examiner may approve,approve with conditions, or deny a boat dock
extension request if it is determined that at least four(4) of the five (5)primary criteria, and at
least four(4) of the six(6) secondary criteria have been met.1
Primary Criteria:
1. Whether the number of dock facilities and/or boat slips proposed is appropriate in relation
to the waterfront length, location, upland land use and zoning of the subject property.
Consideration should be made of property on unbridged barrier islands, where vessels are
the primary means of transportation to and from the property. (The number should be
appropriate; typical single-family use should be no more than two slips; typical multi-
family use should be one slip per dwelling unit; in the case of unbridged barrier island
docks, additional slips may be appropriate.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The subject property is located within an RSF-4 Zoning District and supports
a single-family dwelling for which the LDC allows two boat slips. The proposed boat
docking facility comprises a boat docking facility with two slips, each with a boat lift,for
two 25 foot vessels.
2. Whether the water depth at the proposed site is so shallow that a vessel of the general
length,type and draft as that described in the petitioner's application is unable to launch or
moor at mean low tide (MLT). (The petitioner's application and survey should establish
that the water depth is too shallow to allow launching and mooring of the vessel(s)
described without an extension.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET As demonstrated by a provided Cross Section, the requested protrusion will
allow for the boat lifts to be lowered at MLT.
3. Whether the proposed dock facility may have an adverse impact on navigation within an
adjacent marked or charted navigable channel. (The facility should not intrude into any
marked or charted navigable channel thus impeding vessel traffic in the channel.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET There are no marked channels within this area and the width of the waterway
is approximately 196 feet; as proposed, navigation within the subject waterway will not be
impacted.
4. Whether the proposed dock facility protrudes no more than 25 percent of the width of the
waterway, and whether a minimum of 50 percent of the waterway width between dock
1 The Hearing Examiner's findings are italicized.
Page 2 of 5
facilities on either side is maintained for navigability. (The facility should maintain the
required percentages.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET The approximate waterway width is 196 feet. The proposed dock protrusion
is 35 feet from the MHWL/Property Line. Therefore, the dock facility will occupy
approximately 17.86 percent of the waterway.
5. Whether the proposed location and design of the dock facility is such that the facility would
not interfere with the use of neighboring docks. (The facility should not interfere with the
use of legally permitted neighboring docks.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET The proposed boat docking facility will more than satisfy the required 15-
foot side/riparian setback requirements.Neighboring properties are presently unimproved.
Secondary Criteria:
1. Whether there are special conditions not involving water depth, related to the subject
property or waterway,which justify the proposed dimensions and location of the proposed
dock facility. (There must be at least one special condition related to the property; these
may include type of shoreline reinforcement, shoreline configuration, mangrove growth,
or seagrass beds.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET The applicant has stated that there are no special conditions not involving
water depth and that this criterion is not met. Zoning staff disagrees as the plat for
subdivision in which this property is located, Port of the Islands (The Cays) Phase II
(PB21, PG 1-4) depict a 20-foot drainage easement (D.E.) running along the shoreline of
all canal lots. The shoreline is reinforced by a rip-rap revetment and the rip-rap occupies
the waterfront half of the easement, a swale at the top of the rip-rap occupies the
remainder. Provided drawings demonstrate the D.E. is spanned and not blocked.
2. Whether the proposed dock facility would allow reasonable, safe access to the vessel for
loading/unloading and routine maintenance, without the use of excessive deck area not
directly related to these functions. (The facility should not use excessive deck area.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The proposed boat docking facility will allow for the mooring of two 25-foot
vessels and allow for safe loading, unloading, and minor maintenance.
3. For single-family dock facilities, whether the length of the vessel, or vessels in
combination, described by the petitioner, exceeds 50 percent of the subject property's
linear waterfront footage. (The applicable maximum percentage should be maintained.)
Page 3 of 5
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The proposed boat docking facility will allow for 2 25-foot vessels with a
combined value of 50 feet and the property has 146.35 feet of shoreline; therefore, the
combined vessel lengths occupy 34.16±percent of the waterfront footage.
4. Whether the proposed facility would have a major impact on the waterfront view of
neighboring property owners. (The facility should not have a major impact on the view of
a neighboring property owner.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. The proposed dock facility exceeds required side/riparian setback
requirements; said dock facility is consistent with other docks in the area.
5. Whether seagrass beds will be impacted by the proposed dock facility. (If seagrass beds
are present, compliance with subsection 5.03.06.J of the LDC must be demonstrated.)
The record evidence and testimony from the public hearing reflects that the criterion HAS
BEEN MET. There are no seagrass beds present on the property nor the neighboring
properties within 200-feet of the existing dock structure.
6. Whether the proposed dock facility is subject to the manatee protection requirements of
subsection 5.03.06(E)(11) of this Code. (If applicable, compliance with section
5.03.06(E)(11)must be demonstrated.)
The record evidence and testimony from the public hearing reflects that the criterion is
NOT APPLICABLE. The proposed project is for a single-family residential boat dock
facility. Section 5.03.06.E.11,Manatee Protection Plan, is not applicable for this boat dock
proposal.
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 5.03.06.H
of the Land Development Code to approve the Petition. The Petition meets 5 out of 5 of the
primary criteria and 5 out of 6 secondary criteria(one secondary is not applicable in this case).
DECISION.
The Hearing Examiner hereby APPROVES Petition Number BDE-PL20200001868, filed by
Randy McNeil of Naples Marine Construction representing Suzanne T. Bertolino and Lynee M.
Leipold,with respect to the property described as 153 Venus Cay,further described as Lot 65,Port
of the Islands (The Cays) Phase II, in Section 9, Township 52 South, Range 28 East. Collier
County, Florida, for the following:
Page 4 of 5
• A 15-foot boat dock extension from the maximum permitted protrusion of 20 feet for
waterways greater than 100 feet in width, to allow construction of a boat docking facility
protruding a total of 35 feet into a waterway that is 196± feet wide.
Said changes are fully described in the proposed Dock Plans and Boundary Survey attached as
Exhibit "A" and are subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A-Dock Plans and Boundary Survey
LEGAL DESCRIPTION.
153 Venus Cay, further described as Lot 65, Port of the Islands (The Cays) Phase II, in Section 9,
Township 52 South, Range 28 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.
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.
,pdf
December 10, 2021
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 5 of 5
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