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.

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; and for site alterations, regardless of predevelopment vegetation, on lots within the Plantation Island Unit One, Plantation Island Unit Two and Plantation Island Unit Three Subdivision (unrecorded.)

A.

Variances for signs. The variance procedure for signs is provided in section 5.06.00, the Collier County Sign Code.

B.

Variances for site alterations, regardless of predevelopment vegetation, on lots, within the Plantation Island Unit One, Unit Two and Unit Three subdivisions (unrecorded).

1.

Pursuant to the § 380.032(3) Agreement between the Board of County Commissioners and the Department of Community Affairs dated April 26, 2005, regarding Plantation Island Subdivision within the Big Cypress Area of Critical State Concern, a variance from the requirement of subsection 4.02.14 C.4. of the Land Development Code shall be authorized for site alterations, including dredging and filling, of up to 2,500 square feet, regardless of predevelopment vegetation, on a group of adjacent lots under common ownership, including on a single lot if only one lot is owned, within Units One, Two and Three of the Plantation Island Subdivision (unrecorded) located in Section 29, Township 53 South, Range 29 East, in Collier County, Florida utilizing the procedure as set forth in section 9.04.03 of the Land Development Code and where the proposed development is designed consistent with Big Cypress Critical Area regulations to have a minimum adverse impact on the critical area's water storage capacity, surface water and estuarine fisheries as authorized by Rule 28-25.011, Florida Administrative Code.

(Ord. No. 06-07, § 3.Q; Ord. No. 09-43, § 3.B)

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)

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 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:

1.

A building permit has been issued and is under review, but for which a certificate of occupancy has not been granted.

2.

A building permit and certificate of occupancy or a final development order has been granted.

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 (10) percent of the required yard with a maximum of two (2) feet.

1.

A building permit and certificate of occupancy or a final development order has been granted.

2.

The encroachment applies to the yard requirement which was in effect as of the date on which the certificate or occupancy or final development order was issued.

C.

For property supporting a single-family home, two-family home, duplex, mobile home or modular home, the County Manager or designee may administrative approve encroachments of up to twenty-five (25) percent of the required yard in effect as of the date of the final development order.

1.

In the presence of mitigating circumstances, where the encroachment does not result from error or action on the part of the property owner.

2.

Structures for which a final development order has been issued.

3.

When no building permit record can be produced the following criteria must be met:

a.

An after-the-fact building permit for the structure, or portion of the structure, is issued prior to the application for the administrative variance. The administrative variance will only be approved once all inspections have been completed, and the certificate of occupancy will be issued only in cases where an administrative variance has been approved.

b.

The encroaching structure, or portion of the structure, was constructed prior to the purchase of the subject property by the current owner.

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.

4.

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.

D.

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.

E.

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.OO)

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;

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;

i.

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;

l.

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 functionally dependent use provided that the criteria of (a) through (l) of this section are met.

n.

Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of one-half (½) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing items (a) through (l) 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 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.

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, COLLIER 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.

ii.

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.

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 - Specific Requirements for Waiver of Automobile Service Station Distance Requirements

A.

Waiver of distance requirements. The BZA may, by resolution, grant a waiver of part or all of the minimum separation requirements set forth in section 5.05.05. if it is demonstrated by the applicant and determined by the BZA that the site proposed for development of an automobile service station is separated from another automobile service station by natural or man-made boundaries, structures or other features which offset or limit the necessity for such minimum distance requirements. The BZA decision to waive part or all of the distance requirements shall be based upon the following factors:

1.

Whether or not the nature and type of natural or manmade boundary, structure, or other feature lying between the proposed establishment and an existing automobile service station is determined by the board to lessen the impact of the proposed service station. Such boundary, structure or other feature may include, but not be limited to, lakes, marshes, nondevelopable wetlands, designated preserve areas, canals and a minimum of a four-lane arterial or collector right-of-way.

2.

Whether or not the automobile service station is only engaged in the servicing of automobiles during regular, daytime business hours, or if in addition to or in lieu of servicing, the station sells food, gasoline and other convenience items during daytime, nighttime, or on a 24-hour basis.

3.

Whether or not the service station is located within a shopping center primarily accessed by a driveway, or if it fronts on and is accessed directly from a platted road right-of-way.

4.

Whether or not the granting of the distance waiver will have an adverse impact on adjacent land uses, especially residential land uses.

B.

Waiver request submittal requirements. The request for an automobile service station waiver shall be based on the submittal of the required application, a site plan, and a written market study analysis which justifies a need for the additional automobile service station in the desired location. The site plan shall indicate the following:

1.

The dimensions of the subject property.

2.

All vehicular points of ingress and egress.

3.

Compliance with all requirements of this Code including the location of the structures on site, landscaping, off-street parking, site circulation, architectural design guidelines, and signage.

4.

All proposed buffer areas.

5.

The site plan shall also indicate the layout and type of land uses surrounding the subject property within 500 feet. The site plan shall show the layout of the road on which the proposed station fronts or to which access is provided, including the type of road, the number of lanes, and the location of intersections and turn lanes, median locations and median widths, for a 500 foot distance from the subject parcel.

C.

Additional conditions. The BZA shall have the right to add additional conditions or requirements to its approval of a distance waiver request in order to insure compatibility of the automobile service station with the surrounding area and the goals and objectives of the GMP.