Interoffice Memorandum
DATE: October 28, 2024
TO: Mayor Jerry L. Demings and County Commissioners
THROUGH: N/A
FROM: Tanya Wilson, AICP, Director, Planning, Environmental, and Development Services Department
CONTACT: Renée H. Parker, LEP, Manager
PHONE: (407) 836-1420
DIVISION: Environmental Protection Division
ACTION REQUESTED:
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Acceptance of the findings and recommendation of the Environmental Protection Commission and approval of the request for an after-the-fact variance to Orange County Code, Chapter 15, Article IX, Section 15-342(a)(6) to increase the allowable access walkway width from five feet to six feet with a 12.3 feet by 11.4 feet platform area for the John Jennings After-the-Fact Dock Construction Permit BD-23-10-135. District 1. (Environmental Protection Division)
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PROJECT: Environmental Protection Commission (EPC) Recommendation for Request for Variance for After-the-Fact Dock Construction Permit BD-23-10-135.
PURPOSE: The applicant, John Jennings, is requesting an After-the-Fact Dock Construction Permit with a variance to Orange County Code (Code), Chapter 15, Article IX, Section 15-342(a)(6) (access walkway width). The project site is located at 8425 Sand Lake Shores Court, Orlando, FL 32836 (Parcel ID Number 03-24-28-0553-01-300) on Big Sand Lake in District 1.
On May 5, 2023, the Environmental Protection Division (EPD) became aware of a newly designed boat dock constructed at the subject property. EPD staff conducted a file review and confirmed that the current design of the boat dock does not match the after-the-fact Dock Construction Permit (BD #08-098) issued in 2009. The permitted dock design was a T-shaped floating terminal platform with no roof, which has since been replaced by an unpermitted U-shaped floating terminal platform, including the addition of a roof and pilings. A floating dock accessory structure being used to moor a pontoon boat was also added to the dock, but it has since been removed. The access walkway configuration has remained the same as was authorized in the 2009 after-the-fact permit.
Orange County Code, Chapter 15, Article IX, Section 15-346(a) states, “All maintenance and repair activities must maintain the original design and original footprint of the dock, as approved in the boat dock construction permit. If the design and footprint of the dock will change as a result of a maintenance or repair activity, approval of a minor modification or a new permit will be required.” Since the dock design had been changed from what was previously approved, an EPD Incident was created (23-622189), and a Notice of Non-Compliance (NONC) letter, dated September 7, 2023, was sent to the applicant. The letter stipulated that the dock should either be returned to its original design, or that an after-the-fact Application to Construct a Dock be submitted in order to attempt to permit the structure as redesigned and constructed.
On October 3, 2023, EPD received an after-the-fact Application to Construct a Dock at the subject property. The application included an as-built survey of the dock to be used as the site plan since it had already been constructed. The Code allows a maximum walkway width of five feet. A portion of the constructed walkway is six feet in width, with a platform area that is 12.3 feet by 11.4 feet.
On October 31, 2023, EPD sent a Request for Additional Information (RAI) letter stating the applicant could either re-construct the portion of the walkway to meet Code or apply for an after-the-fact variance. On January 10, 2024, EPD received an Application for Variance to Section 15-342(a)(6) to increase the access walkway width to six feet and have a platform area 12.3 feet by 11.4 feet, in lieu of the limit of five feet in width. EPD requested additional details in an RAI dated February 12, 2024, and a revised after-the-fact Application for Variance was received on April 20, 2024. A final revised Application for Variance was received on August 13, 2024.
The access walkway as it currently exists has not changed from the previously issued after-the-fact Dock Construction Permit, #08-098, however, the walkway is being reviewed as part of the new permit and must meet current standards. The portion of the walkway that is wider than five feet is located above the Normal High Water Elevation (NHWE) of Big Sand Lake, over a shoreline wetland.
Chapter 15, Article IX, Section 15-343(a) of the Code states, "Private docks on lots or parcels having a shoreline frontage of one hundred (100) feet or less, including designated mooring areas, must have a minimum side setback of ten (10) feet from any property line or projected property line." The applicant has a shoreline that measures 72 linear feet at the NHWE, requiring a minimum side setback of 10 feet. Accounting for projected property lines, the dock currently has a side setback of negative 12 feet 2 inches from the eastern property line. On June 14, 2024, EPD received an after-the-fact Application for Waiver to Section 15-343(a), and a notarized Letter of No Objection (LONO) from the shoreline property owners affected by the reduced side setback (Martin Page at 8417 Sand Lake Shores Court). Pursuant to Section 15-350(e), the Environmental Protection Officer (EPO) can approve the side setback waiver as a LONO has been received, and staff has determined there is no negative effect to the environment. No action on the side setback waiver is required from the EPC or the Board.
Chapter 15, Article IX, Section 15-342(a)(6) of the Code states in part, "Access walkways shall be limited to five (5) feet in width. Impacts to wetlands and surface waters must be avoided to the greatest extent practicable." The applicant is requesting an access walkway width of six feet and a walkway platform area of 12.3 feet by 11.4 feet in lieu of the maximum walkway width of five feet.
Section 15-350(c) Variance criteria, states, "A variance application may receive an approval or an approval with conditions if granting the variance: (1) Would not negatively impact the surface water or the environment or if there is a negative impact, sufficient mitigation is proposed pursuant to paragraph 15-350(d), if appropriate; (2) Would not be contrary to the public interest; (3) Where, owing to special conditions, compliance with the provisions herein would impose a unique and substantial hardship on the applicant; (4) Where the environmental protection officer has determined that the hardship is not self-imposed on the applicant; and (5) Would not be contrary to the intent and purpose of this article.
Pursuant to Section 15-350(a), "the applicant must (1) Identify the section(s) of this article that the applicant seeks a variance for and the extent of the requested variance; (2) Describe the impact of the requested variance on the surface water and the environment; (3) Explain the effect of the requested variance on any abutting or affected shoreline property owner(s); (4) Describe how strict compliance with the section(s) of this article would impose a unique, unreasonable, and unintended hardship on the applicant; and (5) Explain why the hardship is not self-imposed.”
To address Section 15-350(a)(1), the applicant’s agent (John Miklos) states, “Section 15-342(a)(6). The applicant requests a variance for an access walkway width of six feet and a walkway platform area of 12.3 feet by 11.4 feet in lieu of the maximum walkway width of five feet. The boardwalk has existed in the current configuration for the past 15 years as permitted under BD-08-098.”
To address Section 15-350(a)(2), the applicant’s agent states, “The boardwalk has existed in the requested condition for the past 15 years. No adverse effects to the surface water or environment have occurred as a result of boardwalk in its current configuration. The requested variance will have no effect on the surface water as it is located above the NHWE. The variance will have no effect on the overall environment as it only requests an additional 139.64 square feet of walkway elevated between 4 and 9 feet above the NHWE. The request will not cause adverse shading to vegetation as the boardwalk is sufficiently elevated. The request will not impede wildlife movement or usage of the lands below as the boardwalk is sufficiently elevated.”
To address Section 15-350(a)(3), the applicant’s agent states, “The requested variance will have no effect on any abutting property owners. The request is located 20-feet within the applicant’s property. The request is not a navigational hazard nor does it affect the rights of other persons to use or access the surface water. The boardwalk has existed in the current configuration for the past 15 years without impeding on the rights of others.”
To address Section 15-350(a)(4), the applicant’s agent states, “Strict compliance with this section would require the entire walkway to be removed and replaced. This is an unreasonable hardship as the current variance request was previously approved without a variance under permit BD-08-098 and the boardwalk has existed for the last 15 years. Furthermore, the costs associated with this dock modification would be excessive for the applicant and the removal wasteful. Compliance with the code presents an unintended hardship for the applicant. Due to the nearly 12-feet of water level fluctuation on Big Sand Lake, the access walkway is required to elevated higher than normal. The wider access walkway is desired because it is safer and provides more stability.”
To address Section 15-350(a)(5), the applicant’s agent states, “The current request was approved without a variance in the previously permitted Boat Dock Permit BD-08-098. The area beneath the request was considered uplands by the County in 2008 and therefore did not require a variance. The area beneath the request is now being claimed by the County as wetlands in 2023 and now requires a variance. The applicant did not create wetlands on his property, therefore; the hardship is not self-imposed.”
On June 11, 2024, a Notice of Application for Variance was sent to all shoreline property owners within a 300-foot radius of the property. To ensure required noticing periods were met, notices were also posted onsite at each neighbor's residence on June 10, 2024, by EPD staff. EPD has received no objections to the request.
On June 17, 2024, the applicant was sent a notice to inform them of the EPC meeting on July 2, 2024.
On August 13, 2024, the applicant and agent were sent notices to inform them of the EPC meeting continued at the applicant’s request to August 28, 2024.
On September 5, 2024, the applicant and agent were sent notices to inform them of the EPC meeting continued to September 25, 2024 due to lack of quorum at the August 2024 meeting.
There is an open enforcement case, Incident No. 23-622189, for construction of a dock without a permit. The NONC dated September 7, 2023, required either submittal and completion of an after-the-fact Application to Construct a Dock or returning the boat dock to the original permitted design. On October 3, 2023, EPD received an after-the-fact Application to Construct a Dock at the subject property. Issuance of the after-the-fact Dock Construction Permit will satisfy the enforcement case. If the after-the-fact variance is denied, the applicant must reconstruct the dock in accordance with the Code.
Additionally, Section 15-353(d) states in part, “Any person determined to have violated section 15-324 for failure to obtain a permit prior to constructing a dock or modifying an existing dock such that a variance or waiver would be required, may be subject to an additional administrative penalty in the amount of one dollar ($1.00) per square foot of the entire structure.” Therefore, an administrative penalty of $1,534.92 was assessed for failure to obtain a permit. The applicant remitted the administrative penalty in full on April 23, 2024.
Staff evaluated the after-the-fact variance request for compliance with the criteria for approval. The recommendation of the EPO was to deny the request for variance to Section 15-342(a)(6) (access walkway width) based on a finding that the applicant has failed to demonstrate that the hardship is not self-imposed pursuant to Section 15-350(c)(4).
EPD presented the after-the-fact variance request in a public hearing before the EPC at their September 25, 2024, meeting. The applicant’s agent was present and provided information in support of the request. Chairman Alan Horn commented that the dock walkway was previously permitted over uplands, and the determination that the area is now wetland is not a self-imposed hardship. Based upon evidence and testimony presented at the hearing, the EPC voted unanimously to reject the findings and recommendation of the EPO, and made a finding that the request for after-the-fact variance was consistent with Orange County Code, Chapter 15, Article IX, Section 15-350(a) and recommended approval of the request for variance to Section 15-342(a)(6) to increase the allowable access walkway width from five feet to six feet with a 12.3 feet by 11.4 feet platform area.
BUDGET: N/A