CITY OF NAPLES STAFF REPORT

Meeting of 8/9/17 Variance Petition 17-V5 CITY OF NAPLES STAFF REPORT To: Planning Advisory Board From: Planning Department Subject: Variance Petition 18-V2 Petitioner: Ian & Catherine Delaney Agent: Jeff E. Wright, Attorney at Law Date: March 28, 2018 REQUEST: Consider a Resolution determining Variance petition 18-V2, for a variance from Section 56-93(c)(1) of the Code of Ordinances, to allow for a pier and boat lift with a shore-normal dimension of approximately 42 feet 6 inches, exceeding the maximum allowable shore-normal dimension of 25 feet for a combined pier and boat lift in Aqualane Shores, on property located at 989 Aqua Circle. BACKGROUND/PREVIOUS ACTION: The petitioner applied for a Variance in 2017 to allow for this dock in the same location and dimensions. The Planning Advisory Board voted to recommend denial of the dock, finding that the request failed to meet General Criteria 2 and Specific Criteria 2, 3, 4, 6, 7, and 8. The petitioner then withdrew the request. Subsequently, the petitioner applied for a Dredge permit to allow for dredging of the submerged area to a maximum -5 MLW (approximate volume of 200 cubic yards). Staff recommended denial of this permit due to the presence of submerged and other natural resources in this location. City Council heard this item in December 2017 and voted to deny the request. STAFF RECOMMENDATION: Staff recommends approval of Variance Petition 18-V2, subject to the following conditions: 1. If the proposed pier is located above or adjacent to submerged natural resources, the applicant shall make a reasonable effort to avoid, minimize or mitigate potential negative impacts to those resources. The petitioner shall provide a bottom survey to ascertain the presence or absence of seagrasses and/or oysters at the site, prior to the issuance of a building permit. 2. The Petitioner will provide a drawing depicting the actual boat upon the boatlift, to confirm that no portion of the boat extends beyond the side setback required in Section 56-93(b)(4) of the Code of Ordinances, and to confirm that the boat lift will be approached from the east without requiring utilization of the waterway in front of the neighboring properties. LOCATION: 989 Aqua Circle SIZE OF PARCEL:.63 acres ±

EXISTING LAND USE: Single Family CURRENT ZONING: R1-10 Residence District PENDING AND/OR SUBSEQUENT ACTION: The Planning Advisory Board will hold a public hearing on this petition at its meeting held on Wednesday April 11, 2018. At the close of the public hearing, the PAB will make a recommendation to the City Council. The City Council is scheduled to consider PAB s recommendation at their meeting held on Wednesday May 16, 2018, with final action taken by resolution. PUBLIC NOTIFICATION: On March 20, 2018, a total of 17 letters were mailed to all property owners within 500 feet of the subject property. As of the date of this report, Staff has received one email in response to the mailing, a copy of which is provided in the material packet. ZONING MAP: Subject Property SURROUNDING PROPERTIES: North South East West Zoning n/a R1-10 R1-10 R1-10 Land Use n/a Single Family Single Family Single Family PROPOSED USE: The subject property, located in the R1-10 zoning district and Aqualane Shores neighborhood, is currently occupied by an existing single family home

and non-conforming pier. The existing pier extends approximately 40 feet into the waterway and is located adjacent to the western side property line. The petitioner intends to demolish the existing nonconforming dock and construct a new dock to accommodate a 44 11 vessel. The variance request is to allow a pier with a shore normal dimension of 27 4 and a boat lift with a shore normal dimension of 42 6 where code requires a maximum shore normal dimension for a combined pier and boat lift of 25. Section 56-93(c)(1) provides specific standards for piers and boats lifts in the Aqualane Shores neighborhood which states: (1) Aqualane Shores, including Phillip G. Rust Development, Elliott Subdivision, Marina Shores Replat, and Kluck Subdivision. a. Side yard setback for piers, boat lifts, and vessels is seven and one-half feet. b. Shore-normal dimension for a pier shall not exceed the smaller of 15 feet or ten percent of the waterway width, whichever is more restrictive. For a boat lift or a combined pier and boat lift, the dimension shall not exceed the smaller of 25 feet or 25 percent. Freestanding mooring piles or dolphins shall comply with the same offshore dimension restriction as for boat lifts. The petitioner indicates there is inadequate depth to moor the homeowner s boat. A request to dredge the submerged area adjacent to the property in order to achieve adequate depth for mooring was previously denied by City Council and is strongly discouraged by Staff. COMPREHENSIVE PLAN: The subject property is designated Residential Low Density on the Future Land Use Map (FLUM) of the Comprehensive Plan. Residential Low Density areas on the FLUM are intended to accommodate single-family or other similar and compatible residential land uses up to a maximum of six (6) dwelling units per net acre. The residential housing types in this category may include traditional single-family detached homes as well as cluster-style homes. This future land use is the most sensitive to disruption from the encroachment of incompatible uses; and protective strategies, such as transition zones of higher density residential areas, increased or substantial landscape buffers, natural barriers and other screening devices may be utilized to protect this land use. The following policies of the Comprehensive Plan apply to variance request 18-V2: Objective 1: Manage new development, redevelopment and reuse to ensure that it is orderly, balanced and compatible with the City s desire to maintain and protect its existing residential character, to maintain viability of its commercial areas, provide open/green space. Encourage pedestrian/bicycle linkages, and protect environmentally sensitive lands. There is currently a dock on this property that extends 40 feet into the waterway, measured from the mean high water line. There is a dock on the property to the west of this site that extends approximately 60 feet into the waterway with pilings extending approximately 65 feet into the waterway and other piers in the immediate area extending up to 74 feet into the waterway. Removing the existing non-conforming 40 foot

accessory pier and installing a new accessory pier and boat lift extending 42 feet 6 inches will be consistent with the surrounding properties and will be compatible with the existing residential character of the neighborhood. Policy 1-2: Unless otherwise permitted in the Comprehensive Plan, new development, redevelopment and reuse shall be consistent with the permitted use and density/intensity of each designation. Construction of a new accessory pier and boat lift is consistent with the permitted use and density of the Comprehensive Plan and the R1-10 zoning district. Policy 1-3: Preserve and protect stable residential neighborhoods through development practices that promote compatibility and consistent character. There is currently a dock on this property that extends 40 feet into the waterway, measured from the mean high water line. There is a dock on the property to the west of this site that extends approximately 60 feet into the waterway with pilings extending approximately 65 feet into the waterway and other piers in the immediate area extending up to 74 feet into the waterway. Removing the existing non-conforming 40 foot accessory pier and installing a new pier extending 27 4 feet and a boat lift extending 42 6 into Naples Bay is consistent with other piers in this area and will be compatible with the surrounding neighborhood. Policy 5-1: Land uses shall be consistent with permitted activities as detailed in Objective 1 and the designation description section of this element. Single family residences and accessory structures, including piers and boats lifts, are permitted uses in the R1-10 district. FUTURE LAND USE MAP: Subject Property

AERIAL OF SUBJECT PROEPRTY: 989 Aqua Circle DEPARTMENTAL REVIEW: The proposed variance has been reviewed by the applicable City departments. The Natural Resources Department noted that they conducted site visits on September 29, 2017 and on November 3, 2017 and observed both submerged and other natural resources within the submerged area adjacent to this property. Oyster clumps were present throughout the proposed dredge area; at least 50% of the oysters were live. Spat (juvenile oysters) were present, indicating this is a healthy oyster growing area. Oyster clumps (live or dead) provide vital near-shore habitat for other marine organisms, and function in wave/surge attenuation. Over 80% of the historic oyster reefs present in Naples Bay have been lost due to dredging and development. The city is expending considerable effort and significant funds (city, state and federal) to restore oyster reefs within Naples Bay to improve water quality, ecosystem health, and resilience to storms and sea level rise. Staff also noted a sea grape and several juvenile mangroves (both protected species) established within the submerged area; dredging the area would result in the death of the mangrove and sea grape seedlings present. The Natural Resources Manager requests that the petitioner provide a bottom survey to ascertain the presence or absence of seagrasses and/or oysters at the site, prior to the issuance of a building permit. If the proposed pier is located above or adjacent to submerged natural resources, the applicant shall make a reasonable effort to avoid, minimize or mitigate potential negative impacts to those resources. The Harbor Master has reviewed the plans and indicated that the proposed dock and boat lift will not present any navigational hazards.

ANALYSIS: The petitioner s agent has filed a petition for a variance. Section 46-37(c) of the Naples Land Development Code allows for the approval of a variance in instances where the established criteria for approval are satisfied. A review of the petition in light of the required criteria is provided for your consideration. The agent s response to each of the criteria is provided with their petition submittal. (c) Variance criteria. (1) General. a. If, upon consideration of the variance criteria set out in this subsection and (c)(2) below, it is determined that the case for approving a variance clearly outweighs the case for denial, the variance may be approved, providing that: 1. The variance does not permit the establishment or enlargement of any use or structure devoted to a use which is not permitted in the district in which the variance is requested; Accessory structures which are incidental to single family residences, including piers and boat lifts, are a permitted use in the R1-10 Residence District. 2. The variance will be consistent with the comprehensive plan. The variance requested is consistent with the Comprehensive Plan. (2) Specific. a. Prior to approving, approving with conditions or denying a variance, city council shall consider and determine, based upon substantial competent evidence, the following criteria: 1. Whether the plight of the applicant is due to unique circumstances not created by the applicant, an agent of the applicant or a predecessor in title of the applicant; The petitioner wishes to rebuild their pier and boat lift in order to achieve an adequate depth to moor their boat. Due to the presence of natural resources along the mean high water line, dredging in order to achieve the needed depth is strongly discouraged by Staff and was denied by City Council. The insufficient water depth at the mean high water line of the subject property was not created by the petitioner or the predecessor in title. Other subdivisions within the City, including Port Royal and Royal Harbor allow for exceptions to the shore normal dimensions for piers and boat lifts that extend into Naples Bay; however, Aqualane Shores does not. Port Royal limits the length to 22 feet, allowing piers on Naples Bay to extend beyond 22 feet in order to reach a maximum depth of five feet, mean low water. For every one foot beyond the 22 foot limit that the pier extends, the side yard setback is increased by two feet for the entire length of the pier and pilings, including anything attached to them, until the pier is centered on the property. Royal Harbor addresses piers and boat lifts on Naples Bay as follows:

Properties facing Naples Bay and Haldeman Creek. The exposed location of these properties, and the interactions of the wake-generated waves by reflection off vertical bulkheads, often dictate a shore-normal positioning of piers and boat lifts. Shore-normal dimensions shall be governed by the proximity of the primary and secondary navigation channels, the shore-parallel shoal, and the existing line of construction. 2. Whether special conditions or circumstances exist which are peculiar to the land or structure involved, and which are not applicable to other lands or structures in the same neighborhood or district; Insufficient water depth is a condition shared by all properties facing Naples Bay. However, unlike other neighborhoods, the Aqualane Shores neighborhood does not provide specific regulations for piers/boat lifts on the bay that address these conditions. Shoaling in this location and the presence of natural resources, including oysters, juvenile oysters, seagrape and mangroves are special conditions existing upon this property. The petitioner is requesting approval to construct a pier and boat lift at a reasonable depth, similar to other piers along Naples Bay, in a manner that will allow for the preservation of the existing natural resources. 3. Whether the failure to grant the variance would result in unnecessary and undue hardship to the property; Failure to grant the variance would hinder the petitioner s ability to enjoy their property in a way similar to other property owners who live on Naples Bay, including those immediately surrounding this property. 4. Whether the failure to grant the variance would deprive the owner of the reasonable use of the property; Failure to grant the variance would deprive the owner of the reasonable use of the waterfront portion of their property, similar to other property owners who live on Naples Bay, including those immediately surrounding this property. 5. Whether the variance will promote, or will not be inimical to, the health, safety and welfare of the community; There is currently a nonconforming pier on this property which extends 40 feet into the waterway. The proposed variance request to allow a combined pier and boat lift with a shore normal dimension of 42 6 will not be inimical to the health, safety or welfare of the surrounding neighborhood and community. 6. Whether the variance will be otherwise consistent with and in harmony with the general intent and purpose of this Land Development Code; The general intent and purpose of the Land Development Code is to preserve and protect the health, safety and general welfare of the community, to protect the character and property values of the city, to protect the assets of the city and their economic value as it relates to the city as a tourist-oriented community, and to maintain and enhance the attractive nature of the city. Approving a combined pier and boat lift with a shore normal dimension of 42 6 is compatible with other properties facing

Naples Bay and within the surrounding area and is consistent with the general intent and purpose of the Land Development Code. 7. Whether the variance is the most practical or logical solution to the need for relaxation of the literal requirements of this Land Development Code; The requested variance is the most practical and logical solution to the need for relaxation of the literal requirements of the land development code as it allows the petitioner to utilize the waterfront of their property in a manner similar to others with property on Naples Bay and within the surrounding area. 8. Whether the variance will be injurious to the surrounding neighborhood or adjacent properties. There is currently a dock on this property that extends 40 feet into the waterway, measured from the mean high water line. There is a dock on the property to the west of this site that extends approximately 60 feet into the waterway with pilings extending approximately 65 feet into the waterway and other piers in the immediate area extending up to 74 feet into the waterway. Removing the existing non-conforming 40 foot accessory pier and installing a new pier extending 27 4 feet and a boat lift extending 42 6 into Naples Bay is consistent with other piers in this area and will be compatible with the surrounding neighborhood. In order to ensure that the construction of the proposed dock does not negatively affect the use or future use of the property to the west, Staff recommends that the petitioner provide a drawing depicting the actual boat upon the boatlift, to confirm that no portion of the boat extends beyond the side setback required in Section 56-93(b)(4) of the Code of Ordinances, and to confirm that the boat lift will be approached from the east without requiring utilization of the waterway in front of the neighboring properties. (b) General standards. (4) The shore-parallel dimension of a pier shall not exceed the width of the rear yard, less the side yard setback dimensions for the subject zoning district. This restriction on encroachment into each side yard shall apply to both fixed and floating piers, and to boat lifts and vessels. 9. Whether the construction resulting from the variance will be compatible in character and scale with the surrounding neighborhood, preserve natural resources, and preserve historic structures by maintaining the architectural character of the original building in keeping with the period in which it was built. The construction of new pier extending 27 4 feet and a boat lift extending 42 6 into Naples Bay will be compatible in character and scale with other piers and boat lifts on Naples Bay and thus will be compatible with the surrounding neighborhood. However, in order to ensure that the particular design and location of this dock will not negatively affect the use or future use of the property to the west, Staff recommends that the petitioner provide a drawing depicting the actual boat upon the boatlift, to confirm that no portion of the boat extends beyond the side setback required in Section 56-93(b)(4) of the Code of Ordinances, and to confirm that the boat lift will

be approached from the east without requiring utilization of the waterway in front of the neighboring properties. (b) General standards. (4) The shore-parallel dimension of a pier shall not exceed the width of the rear yard, less the side yard setback dimensions for the subject zoning district. This restriction on encroachment into each side yard shall apply to both fixed and floating piers, and to boat lifts and vessels. FINDINGS: Staff has reviewed the petitioner s application against the applicable criteria and recommends APPROVAL of the request for petition 18-V2, finding that the case for approval outweighs the case for denial. Respectfully submitted, Erica J. Martin, MPA, AICP Senior Planner Existing Site Conditions