HEX Final Decision 2017-33 HEX NO. 2017—33
HEARING EXAMINER DECISION
PETITION NO. PL20170003285 - 3570 Bayshore Drive, LLC, filed an appeal of the
administrative approval of the Official Interpretation INTP-PL20170001233 for the
Bayshore Beer Garden in the General Commercial Zoning District within the Bayshore
Mixed Use Overlay District-Neighborhood Commercial Subdistrict (C-4-BMUD-NC). The
subject property is located at 3555 Bayshore Drive, Naples, Florida in Section 14, Township
50 South and Range 25 East, in Collier County, Florida.
DATE OF HEARING: November 9, 2017
STAFF RECOMMENDATION: Denial of Appeal.
FINDINGS:
1. That Collier County's Land Development Code (LDC) relies on the 1987 Standard
Industrial Classification manual (SIC) to define land uses. This manual describes and
classifies categories of occupational uses. Each establishment listed in the SIC is classified
according to its primary activity.
2. That the SIC manual does not designate uses to zoning categories. Designations are
provided by the Collier County Land Development Code (LDC) pursuant to provisions
within the Growth Management Plan.
3. That a microbrewery is not a separately listed business within any category of the SIC
manual as either a principal or accessory use. Breweries are a use within SIC #2082 and
included as"Establishments primarily engaged in manufacturing malt beverages." Within
the SIC manual there are no minimum or maximum limitations on the size of a brewery.
4. That a brewery is not considered a principal use within the C-4-BMUD-NC district.
5. That the principal use is a beer garden and is a listed use under SIC 5813, drinking places.
SIC #5813 is an allowed use within the C-4-BMUD-NC commercial zoning district. In
this instance, the beer garden use relies upon an accessory microbrewery use to create the
product that will be sold to the patrons of the principal business.
6. That a microbrewery if restricted in scale, is incidental and subordinate to the principal use
of a beer garden. This microbrewery is related to the main purpose of the business, on the
same lot, under the same ownership, utilizes less than 49% of the floor area and the
principal use maintains on-site sales at 51% or greater.
7. That similar brewery operations customarily exist within Collier County alongside other
commercial businesses.
8. That use of an accessory microbrewery in the Bayshore Mixed Use Overlay District -
Neighborhood Commercial Subdistrict, is an allowed use consistent with the Growth
Management Plan.
9. That the industrial manufacturing of beer, more typically known as a brewery (SIC 2082)
as a principal use is in fact an industrial use that is not allowed as a principal or conditional
use within either the underlying C-4 zoning district or the BMUD-NC overlay district.
[17-CPS-01719/1381631/1]36 1 of 8
10. Based on the applicant's written petition, testimony at the hearing of the appellant, the
property owner, and the public, and the recommendation of staff, the Hearing Examiner
finds that the criteria set forth in Section 1.06.01.D.6.a of the Land Development Code has
not been met and the Appeal should be denied.
ANALYSIS:
This Appeal questions an Official Interpretation (01) issued by the Director of Planning and
Zoning Department, that would recognize a microbrewery as an allowed accessory use in the
Commercial-4/Bayshore Mixed Use Overlay Neighborhood Commercial (C-4-BMUD-NC)
zoning district within the Bayshore/Gateway Triangle Redevelopment Overlay zoning overlay
(Bayshore Overlay).
The Appellant filed an Official Interpretation asking if the industrial manufacturing of beer is
allowed within the C-4/BMUD-NC zoning district. Mr. Mike Bosi, Director of the Planning and
Zoning Department, responded (see Exhibit B) in part:
"The industrial manufacturing of beer, more typically known as a brewery (SIC
2082) as a principal use is in fact an industrial use that is not allowed as a principal
or conditional use within either the underlying C-4 zoning district or the BMUD-
NC overlay district. As noted earlier within this official interpretation,within each
zoning district there are permitted uses, conditional uses and accessory uses. The
allowance of a microbrewery (on-site brewing of beer) associated with a proposed
drinking establishment, in this instance beer garden, is an accessory use that is
directly related to the principal use...."
Mr. Bosi's official interpretation (OI) (see Exhibit F) considered the scale of the proposed
microbrewery as compared to the intent of the SIC classification of Breweries under SIC #2082.
His conclusions are in summary:
1. That SIC 2082 as a principal use is in fact an industrial use and not allowed as a principal
or conditional use within either the underlying C-4 zoning district or the BMUD-NC
overlay district;
2. That the allowance of a microbrewery(on-site brewing of beer)associated with a proposed
drinking establishment or in this instance a beer garden, is an accessory use that is directly
related to the principal use;
3. That the beer produced within the establishment will be for on-site consumption and
incidental and subordinate to the primary use on the property;
4. That the subordinate relationship is reflected in the square footage allocations of the
facility;
5. That the microbrewery is directly intertwined with the beer garden as a source of the
establishment's main product of sale (beer);
6. That the zoning district appropriate for a brewery is Industrial Zoning. This is based upon
the size, scope, scale and intensity of such facilities, often associated with large scale
production capacities, demands upon the utility infrastructure and distribution capability;
7. That the traffic analysis dated July 13, 2016 stated the drinking area would generate 44
P.M. peak hour trips and the microbrewery would produce 3 P.M. peak hour trips, or six
[17-CPS-01719/1381631/1]36 2 of 8
(6) percent of the total P.M. peak hour trips. The project trip split further suggests that the
microbrewery is subordinate to the overall operation;
8. That the square feet of facility dedicated to the microbrewery use is of a scale that limits
the external influence of the microbrewing activities to the subject site, with little to no
external effect upon surrounding land uses;
9. That to ensure that the production of beer is primarily for the operation of the brew garden,
a condition of approval required is that the sales of onsite consumption must be maintained
at a minimum percentage of 51 percent of total sales; and
10. That the establishment shall provide documentation of percentage of sales on an annual
basis to the Growth Management Department. This reporting requirement will ensure the
primary use of the property is maintained.
The Appellant appealed (see Exhibit G) Mr. Bosi's Official Interpretation and requested that the
OI be modified as necessary to confirm the following:
1. The Property has a Collier County, Florida Future Land Use Map ("FLUM") Element
Designation of Urban, Mixed Use District, Urban Coastal Fringe Subdistrict and is further
located in the Bayshore/Gateway Triangle Redevelopment Overlay. Allowable uses with
the Urban, Mixed Use District, Urban Coastal Fringe Subdistrict designation of the Future
Land Use Map and the Bayshore/Gateway Triangle Redevelopment Overlay do not include
industrial manufacturing of beer or any other types of industrial uses whatsoever. Further,
in the Urban Designation of the FLUM, industrial uses are only permitted in the Urban,
Industrial District and in the Urban Commercial District, certain quadrants of Interchange
Activity Centers.
2. Industrial manufacturing of beer, more typically known as a brewery (SIC code 2082) is
an industrial use that is not permitted on the Property and is not permitted as a principal,
conditional or accessory use on the Property.
Background
The Bayshore/Gateway Triangle Redevelopment Overlay (Bayshore Overlay) designates the
location of the proposed microbrewery as BMUD-NC and the zoning atlas includes the underlying
zoning reference: C-4-BMUD-NC. See attached Exhibit D for a full detailed listing of uses
allowed in this overlay. It is notable that the Bayshore Overlay does not include uses listed by SIC
numbers as typically found in the zoning uses listed in the LDC. When asked to explain the Zoning
and Planning Director provided the following testimony:
"...Metal products and fabrication is one of the permitted uses; laboratories;
laundries; metal — warehouses; repair shops; storage outdoor; and the one I found
most interesting was research and development. And why do I find that interesting?
Is one of the things that you will notice,that there's no SIC codes that are associated
with these groupings. They're open. They are a large umbrella of activities....
Collier County's Land Development Code traditionally uses the SIC code approach
to designate what land uses would be provided for. This a little bit more flexibility.
It's a redevelopment area. It's a mixed-use redevelopment area, and I believe that
flexibility was specifically intended within these groupings."
[17-CPS-01719/1381631/1]36 3 of 8
Typically, the LDC categorizes SIC uses into zoning districts and then lists uses allowed within
each District by their SIC number. The Bayshore Overlay is atypical in that it groups uses into
categories under generic subtitles, then lists uses by topics without SIC numbers.
The LDC section of the Bayshore Overlay as applicable to this appeal is listed as"Manufacturing,
Wholesale and Storage" and provides the following description: "Premises available for the
creation, assemblage, storage, and repair of items including their wholesale or retail sale".
Listed uses under the Bayshore C-4-BMUD-NC district, in Section 2.03.03.I. Table 1 include:
J) Manufacturing/Wholesale/Storage
• laboratory - Medical, analytical, research;
• Laundries and Dry Cleaning;
• Media Production;
• Metal Products Fabrication;
• Repair Shops;
• Research and Development; and
• Storage - Outdoor
In addition the Bayshore Overlay includes the following language:
"Any use not listed in the Table of Uses is prohibited unless the County Manager or
designee may determine that it falls within the same class as a listed use through the process
outlined in LDC Section 1.06.00, Rules of Interpretation."
The process in 1.06.00 requires an Official Interpretation process be followed to determine
additional uses. This process was initiated on March 31, 2017 by the Appellant. Mike Bosi,
Director,Planning and Zoning Department,provided an official interpretation on August 11,2017.
This was subsequently appealed on September 6th, 2017 and is addressed by this decision.
Interpretations of the LDC and the Growth Management Plan are delegated in accordance with the
LDC to the Director of the Planning and Zoning Department.
Mr Bosi explained his approach to the interpretation during his testimony:
"As I stated, I said there are two words that were really guiding our determination,
and the first was focus, and that about where the zoning focus was, whether it was
C4 or the Bayshore mixed-use district,and then the second was scale,and it is scale.
And it's the scale of the operations in subordination to the primary use of the
property that allowed me to make that determination that a use category that could
be argued could be permitted,could be accommodated within an accessory capacity
to a principal use that has a direct relationship to that principal use. And that is how
the determination was arrive upon."
There are over one-hundred and forty commercial uses allowed by right within the underlying C-
4 commercial zoning district (see Exhibit C). As conditioned the microbrewery will present no
[17-CPS-01719/1381631/1P6 4 of 8
more impacts to the neighborhood than many of the other of uses allowed by the LDC within the
Commercial C-4 such as:
1. Ancillary Plants.
2. Automotive vehicle and equipment dealers (5511 and 5599, new vehicles only)
3. Bowling Centers, indoor (7933)
4. Eating and Drinking establishments (5812 and 5813)
5. Food stores (groups 5411-5499)
6. Gasoline Service Stations (5541)with services and repairs as described in section 5.05.05
7. Hardware Stores (5251)
8. Hospitals (8062-8069)
9. Motorcycle Dealers (5571)
10. Retail - miscellaneous (5921-5963, 5992-5999)
Brewing beer is considered manufacturing by the 1987 OSHA SIC manual. Breweries are
described under SIC#2082(see Exhibit E)as"Establishments primarily engaged in manufacturing
malt beverages." Industrial breweries can be large facilities utilizing a significant amount of
infrastructure and dedicated to manufacturing. Mr. Bosi interpreted that such a primary use is
intended for an industrial district and that not all manufacturing of beer will rise to the level of a
large industrial operation when their scale is limited to operating in a manner comparable to
allowed commercial uses.
As provided in the Staff Report, microbreweries are not new to Collier County. They exist in
multiple jurisdictions within the county and in a variety of similar commercial zoning districts.
The Staff Report provided a listing of 5 other breweries, only one of which is in an industrial
District.
The 5 other locations identified by staff are:
1. Bone Hook Brewery at 1514 Immokalee Road. The zoning for this location is the Creekside
Commerce Park PUD and the brewery is within the business district of the PUD. This business
district specifically stated that Breweries (Group 2082) are an allowed principal use mixed
within the other uses of the business district that include eating places,hotels,hardware stores,
drug stores and retail bakeries. The PUD also contains separate tracts designated as
industrial/commercial districts, however the brewery is only allowed within the business
district.
2. Riptide Brewing Company at 987 3rd Ave.,Naples. Riptide is within the Downtown District
- Mixed Use zoning within the City of Naples. The "D" downtown district is intended to
contain a mixture of uses including commercial, medical, office, service, restaurant, cultural,
institutional, and residential.
3. Marco Island Brewery at 1089 N. Collier Blvd., Marco Island, is within the Commercial - C4
section of their zoning code. The intent of this commercial zoning district is to concentrate
commercial development at the intersections of arterial roads where traffic impacts can readily
be accommodated, to avoid strip and disorganized patterns of commercial development, and
to create commercial centers.
[17-CPS-01719/1381631/1]36 5 of 8
4. Oil Well Brewery at 5334 Ave Maria Blvd. is within the Town Center designation of the Ave
Maria SRA. The Town Center is a mixture of uses. Retail, office and residential are permitted
within the Town Center while maintaining compatible relationships among buildings.
5. Naples Beach Brewery at 4120 Enterprise Ave., Collier County. This location is within an
industrial district. The Naples Beach Brewery is primarily a brewery with a tasting/retail area
for their product that occupies less than 20% of the business floor space.
Mr. Bosi provided testimonyto further explain his position for the allowance of a microbrewery
P
as an accessory use. His comments included three specific areas:
• "...And if you look at the trip generations report that was supplied for the SIP, 47
total p.m. trips were generated by this facility. Three of them were allocated to the
light industrial activity for the manufacturing of beer. That's 6 percent. That's 6
percent of the trips generated by this facility would be associated with that
manufacturing activity,which is a permitted use group within the Bayshore mixed-
use neighborhood commercial sub district."
• "...The second aspect of the determination that's subordination was related to the
square footage limitations.... The proposed use in regards to its impact, its visual
impact upon the surrounding property owners in my regard, from my professional
planning opinion, is a great improvement to the visual quality and the overall
impression that the area will provide."
• "...And then, ultimately, we suggested that a sales limitation be placed as 49 to 51
percent to ensure that that subordinate relationship can be maintained. So three
individual factors that we arrived — that we utilized to try to justify and establish
what that subordinate relationship will be."
Further the property owner, through their legal counsel, Mr. Brooker, provided the following
testimony:
"...Finally, to conclusively demonstrate that the proposed microbrewery is an
establishment primarily engaged in the retail sale of beer, we're will to offer these
stipulations today:
At least 51 percent of all revenues of this business will come from sales of
beer for on-site consumption.
No more than 49 percent of the space or square footage of this establishment
will be devoted to the manufacturing side of beer.
We will be licensed under Florida's beverage law, specifically Section
561.221(3), as a vendor and manufacturer, and that licensing classification by the
state requires us to, A, sell beer for on-site consumption and that our production is
limited to less than 10,000 kegs per year. We will easily satisfy both of those
conditions.
We agree to limit off-site shipments — remember, we are not a distributor.
Distributors must come to us, load up, and ship off site — no more than three
shipments a week. And to the extent necessary, we stipulate to the accuracy and
[17-CPS-01719/1381631/1]36 6 of 8
the binding nature of the professional opinions regarding traffic impacts contained
in the TIS in your packet."
The off-site activity proposed by the property owner was not considered during the OI review per
Mr. Bosi's testimony:
"There was—when I wrote the OI,the official interpretation,there wasn't a
direct contemplation of the off-site, but in constructing the staff report for the
appeal, I recognized that microbreweries can have off-site activity, and based upon
limitations of what that could be, I was comfortable in providing for that limitation
that only 49 percent of sales could be related to off-site."
Conclusion
The beer garden is the principal use and the accessory microbrewery supports that principal use.
A beer garden is classified under SIC 5813 as one of 15 listed drinking places (see Exhibit E),
including such businesses as tap rooms, bars, taverns, cocktail lounges and night clubs. With the
scale of the accessory use described and subsequent limitations imposed by the OI and this
decision, the accessory microbrewery will not exceed the intensities of the principal use. The
microbrewery produces the product that the principal use relies upon and sales of this product must
be primarily generated by the principal use. As limited, the accessory use could not become an
independent business whose primary use is a brewery.
DECISION:
The Hearing Examiner hereby denies Petition No. PL20170003285, which is an appeal of the
administrative approval of the Official Interpretation INTP-PL20170001233 for the Bayshore
Brew Garden in the General Commercial Zoning District within the Bayshore Mixed Use Overlay
District-Neighborhood Commercial Subdistrict (C-4-BMUD-NC), on property located at 3555
Bayshore Drive, Naples, Florida, and further described herein. The administrative approval of
Official Interpretation INTP-PL20170001233 is hereby affirmed, and is further modified in
accordance with the conditions below.
ATTACHMENTS:
Exhibit A - Legal Description
Exhibit B - 11-9-2017 Transcript
Exhibit C - Section 2.03.03 of the LDC, Commercial zoning districts
Exhibit D - Section 2.03.07.I. Bayshore Mixed Use Overlay District
Exhibit E - SIC Industry No. 2082 and 5813
Exhibit F - Official Interpretation
Exhibit G - Appeal of Official Interpretation
LEGAL DESCRIPTION: See Exhibit A.
[17-CPS-01719/1381631/1]36 7 of 8
CONDITIONS:
The following condition was recommended in the Staff Report, and the Site Improvement Plan is
hereby modified to impose this condition:
1. The facility shall maintain a minimum of 51%of all sales for on-site consumption and that
the owner of the establishment shall provide documentation of percentage of sales on an
annual basis to the Growth Management Department.
The following stipulations were offered by the property owner at the public hearing, and the Site
Improvement Plan is hereby modified to reflect these conditions:
2. No more than 49 percent of the space or square footage of this establishment will be
devoted to the manufacturing of beer.
3. There will be no more than three (3) shipments off-site per week.
4. Production is limited to less than 10,000 kegs per year.
APPEALS:
This decision becomes effective on the date it is rendered. Pursuant to Ordinance 2013-25, as
amended, a Hearing Examiner Decision may be appealed to the Board of County Commissioner
or the Board of Zoning Appeals, as appropriate. Appeals must be filed within 30 days of the date
the Hearing Examiner Decision is rendered.
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.
- - 11 IF
Date Mark Strain, Hearing Examiner
Approved as to form and legality:
6/1/
Heidi Ashton- icko
r�----�.
Managing Assistant County Attorney
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,*** OR 5236 PG 78 ***
EXHIBIT"A"
LEGAL DESCRIPTION
Begin at the Southwest corner of Lot 115,NAPLES GROVE AND TRUCK COMPANY'S LI I"I'LE •
FARMS NO. 2, according to the Plat thereof, as recorded in Plat Book I, Page 27-A, of the Public
Records of Collier County,Florida,thence run East 300 feet;thence North 166 feet;thence West 300 feet;
thence South 166 feet to the point of beginning;being in the Southwest corner of Lot 115 of NAPLES
GROVES AND TRUCK COMPANY'S LITTLE FARMS NO.2,LESS and EXCEPT,the West 25 feet
thereof deeded to the State of Florida by deed recorded in Deed Book 28,Pages 80-81,Public Records of
Collier County,Florida.
\
in)P
/4. L7/
WARRANTY DEED
PAGE 3 or 3
1
Exhibit B
Page 1 of 103
TRANSCRIPT OF THE MEETING OF THE
COLLIER COUNTY HEARING EXAMINER
Naples, Florida, November 9, 2017
LET IT BE REMEMBERED, that the Collier County
Hearing Examiner, in and for the County of Collier,
having conducted business herein, met on this date
at 9:00 a.m., in REGULAR SESSION at 2800 North
Horseshoe Drive, Room 609/610, Naples, Florida, with
the following people present:
HEARING EXAMINER MARK STRAIN
ALSO PRESENT:
Mike Bosi, Planning and Zoning Director
Heidi Ashton-Cicko, Managing Assistant County
Attorney
Exhibit B
Page 2 of 103
PROCEEDINGS
HEARING EXAMINER STRAIN: Good morning,
everyone. Welcome to the Thursday, November 9th meeting of
the Collier County Hearing Examiner's Office.
If everybody will please rise for Pledge of Allegiance.
(The Pledge of Allegiance was recited in unison.)
HEARING EXAMINER STRAIN: Thank you.
We started a few minutes late. We were short on some
chairs. For those of you who have not been seated, there are
chairs available on the left side of the room as you come through
the door.
With that, we'll move to the review of the agenda. We have
four items on today's agenda.
Item 3A is a petition for Cameron Partners II, LLC. It's for
the Heritage Bay PUD. That particular item is continued until
November 30th. So if you're here for the Cameron Partners II,
LLC, issue in Heritage Bay, that will not be heard today. It will be
heard November 30th.
Likewise, Item 3D is the Bautsch -- David Bautsch petition
for a boat dock, and that's up in Hickory Shores. So if you're here
for that one today, it's going to be continued; it is continued until
November 30th as well. Both of those will not be heard today.
***That takes us to the two items that are on today's agenda
that will be heard. They will both be discussed concurrently, and
then separate decisions will be issued on each.
Those two advertised public hearings are as follows: Item
3B, Petition No. PL20170003285. It's the 3570 Bayshore Drive,
LLC, of an appeal to an official interpretation done by county staff,
and then Petition No. PL20170001829, again, it's 370 (sic)
Bayshore Drive, LLC. It's the petition for appeal of a site
improvement plan, an SIP. SIP-20150002675. Both of these are
Exhibit B
Page 3 of 103
for the Bayshore Drive facilities at, I believe they're 3555 and
3557, possibly, on Bayshore Drive.
First, all those wishing to testify on behalf of these items,
please rise to be sworn in by the court reporter. So if you intend to
speak today, please stand up to be sworn in.
(The speakers were duly sworn and indicated in the
affirmative.)
HEARING EXAMINER STRAIN: Disclosures on my part,
and my disclosures will be for both: I've talked with county staff.
I've met with the property owner way back before all this started.
I was introduced to them at Commissioner Taylor's office. I also
have provided Commissioner Taylor and Commissioner Fiala with
the bases that we're having this hearing today. I also met with the
applicant and his attorney and representatives at a meeting
yesterday or actually it was -- I think it was Monday, two days ago,
and we went over issues that I'll be asking clarification on today.
And I also met with the county staff member who wrote the
OI, Mike Bosi. We talked about issues for today's hearing. I've
received emails from numerous people in Bayshore, and I assume
most of them are in the Bayshore area, probably about 40. Every
email I've received has been forwarded to Mike Bosi's office for
record. I received an email late yesterday from the appellant,
which I believe will be addressed at today's meeting.
So with that, I have no other disclosures, and we'll move right
into the process for today. The procedure for today will be three
presentations. The first presentation will be by the appellant, which
is the 35070 (sic) Bayshore Drive entity; the second appeal -- and
that appellant will have one hour for their both expert testimony
and discussion of the two issues.
The next presentation will be by county staff in response to
the appellant and also their position on the OI and the SIP; and the
Exhibit B
Page 4 of 103
last and final speaker will be the property owner. And each one of
these speakers will be one hour. The property owner will be able
to present their position.
And with that, after the presentations by each one of the
individuals -- now, they have up to an hour. It doesn't mean
they'll take an hour. It depends on what they want to say -- we'll
turn to the public for public comment. Public speakers will be
limited to five minutes unless otherwise waived. And then after
the public comment we'll have rebuttal by the entities that were
previously providing presentations. Those rebuttals will be no
longer than 10 minutes.
And then that will be the end of today's particular hearing on
these particular matters, and a decision on these matters is
generally rendered within 30 days -- it will be rendered within 30
days. It's not just generally. We'll have it completed in 30 days,
maybe less if the time affords.
Decisions are final unless appealed to the Board of County
Commissioners, and all speakers are limited to five minutes unless
otherwise waived. With that, I do not have any procedural issues to
discuss.
Ms. Ashton, did you have anything you wanted to bring up?
MS. ASHTON-CICKO: I believe you addressed that the
petitions will be heard -- the testimony will be heard jointly and
that the issues for today are essentially the same in both cases.
HEARING EXAMINER STRAIN: Yes, thank you.
Okay. With that, the first item up is the appellant's
presentation. Do you mind approaching the podium, state your
name and who you represent, and we'll go from there.
MR. LEWIS: Hi. Good morning, Hearing Examiner
Strain. Doug Lewis, for the record. I'm an attorney with the
Thompson & Lewis law firm. We're located at 850 Park Shore
Exhibit B
Page 5of103
Drive, Suite 201A, Naples.
We represent 3750 Bayshore Drive, LLC. They're the owner
of an adjacent mixed-use project zoned BMUD-NC, Bayshore
Drive mixed-use district neighborhood commercial, C4, that
would be -- NC with the overlay. And my client's property is
located at 3750 Bayshore Drive.
A couple of housecleaning items. I do have some evidence
binders today that I'd like to introduce into the record. I can give a
copy to the owner, which I believe today is a party; is that correct --
HEARING EXAMINER STRAIN: That's correct.
MR. LEWIS: -- in the proceeding? Okay. And also to
staff as well.
HEARING EXAMINER STRAIN: Do you have one for the
court reporter?
MR. LEWIS: Yeah. We have one for the court reporter,
absolutely.
HEARING EXAMINER STRAIN: In order to be in the
record, she's going to need a copy.
MR. LEWIS: Absolutely. Absolutely, we've got one for
her, the court reporter.
MS. ASHTON-CICKO: I need a copy.
HEARING EXAMINER STRAIN: And the County
Attorney's Office.
MR. LEWIS: County Attorney.
HEARING EXAMINER STRAIN: Well, which will be
myself.
MR. LEWIS: Well, we have one for Commissioner Strain,
yeah.
HEARING EXAMINER STRAIN: I'll just provide mine to
the county attorney. At this point I'm not going to be able to read
it.
Exhibit B
Page 6 of 103
MR. LEWIS: Well, it's a helpful guide as you're reviewing
today to be able to follow along through the tab.
HEARING EXAMINER STRAIN: Okay. We will do our
best.
THE COURT REPORTER: You can use mine and just give
it back to me.
MR. LEWIS: Okay. So we'd like to enter this binder into
the record. There's Tabs 1 through 24.
HEARING EXAMINER STRAIN: They will be in the
record.
MR. LEWIS: Thank you. In addition, we did just want to
note, so we don't waive those, I did send an email out
addressing -- on Monday I believe I received a procedure for the
hearing today. I did note the objections. I don't want to waste
my time today or your time today addressing those, but we don't
waive those objections. We've raised those objections. We've
outlined those objections in writing, and those are also noted under
Tab 21 in the binder.
HEARING EXAMINER STRAIN: I did have a discussion
with the County Attorney's Office on your email. It came in late
yesterday, so we had a brief discussion this morning. Ms. Ashton
may want to address some issues on particular email.
Heidi?
MS. ASHTON-CICKO: Well, I'm going to need to review
his binder, so I will address those issues after I have a chance to
review what he submitted.
HEARING EXAMINER STRAIN: Okay. Thank you.
MR. LEWIS: So, yeah. There were some procedural
objections that dealt with issues leading up to today's hearing.
There are procedural issues that we raised in relation to your
administrative procedures for how this hearing is supposed to flow
Exhibit B
Page 7 of 103
as it relates to how you've set it up today. So we've outlined those.
I do have an expert here today, Mr. Greg Stuart, so I'd like to
ask the County Attorney how we'd like to qualify him. I'm happy
to get him qualified.
MS. ASHTON-CICKO: Excuse me just a second. For the
record, I would like to go through and address generally the issues
I believe he's raised, and then I will review the package at a break
and see if there's anything that I need to supplement.
HEARING EXAMINER STRAIN: Okay. Why don't we
move through -- the email that came in yesterday, I assume, is the
one that would be the most important to review right now.
MS. ASHTON-CICKO: Okay. The first issue he raised is
that the hearing procedures do not comply with Chapter 9 of the
county's administrative code. And the procedure is discretionary,
at the sole discretion of the HEX, and that's very clear in Chapter 9
of the administrative code. I will provide a copy of that for the
record for the clerk.
Combining of time frames for the separately filed appeals:
It's appropriate to consolidate the cases similar to how court
proceedings are held for efficiency; however, decisions and
evidence related to those will be separately provided by the
Hearing Examiner.
The time afforded, I think that it's at the discretion of the
Chair how he wants to handle the time, and he had distributed a
procedural outline to the attorneys in this case for purposes of
efficiency.
Cross-examination of witnesses: We haven't gotten to that
issue, so it's a premature claim.
And there were some cancellations of the advertisement for
the prior scheduled hearing, and the reason that had to be done is
that the county's procedure requires the approval of the appellant
Exhibit B
Page 8 of 103
who's paying for the ad, which we did not receive. And we did
receive it late, and it was not legally acceptable so, therefore, we
had to continue the hearing.
And, in addition, the appellant doesn't get to pick a hearing
date. That's determined by county staff, County Manager agency.
I think I've addressed all the issues. If I missed any -- and as
to the identification of the parties, the parties here today are the
applicant, which is the property owner, ANK Crafts, LLC; the
appellant is --
HEARING EXAMINER STRAIN: 3570 Bayshore Drive,
LLC, I believe.
MS. ASHTON-CICKO: Okay. And then the third party is
the county staff.
And I'm going to introduce into evidence the Chapter 9 of the
Hearing Examiner, the Carillon County (sic) Residential Versus
Seminole County case and, in addition, all the procedures that I've
identified are consistent with our Code of Laws Section 2-83, the
LDC 8.10.00, Chapter 9 of the Administrative Code, and our
county special act Chapter 2001-345. So, thank you.
HEARING EXAMINER STRAIN: Okay. Thank you, Ms.
Ashton.
Mr. Lewis, go ahead.
MR. LEWIS: So we have addressed those -- we still
maintain our objections. I don't want to spend time today delving
into the advertisements that we had requested on the Site
Improvement Plan approval that was -- the ad that was canceled by
the County Attorney's Office without the client's permission or
approval, but those are well documented. They are in the record.
We just want to state that we respect and understand the County
Attorney's position as it relates to due process. We still haven't
waived them. We maintain them.
Exhibit B
Page 9 of 103
It is difficult, I will tell you, to prepare for the hearing when
we don't know, for example, whether or not we're going to have the
ability to do direct or cross-examination. So in that regard, I guess
we've been told that that will be decided as we move through the
process.
I do say -- I will say that we do have some questions. If we're
unable to ask the applicant or the owner, the property owner,
questions today, I do have some questions that were simply not
asked by staff, and I'd like to -- if we can't ask these questions, I
think it will be helpful for the interest of the public to understand
what's going to happen here, for the owner to address these.
The questions we'd like to ask are, you know, what are the
property owner's annual barrel projections, their production
projections? How many barrels will be sold to distributed
wholesale for off-site consumption? I have reviewed the CRA
minutes. I'm not sure if many -- they might, but I haven't seen any
public records that indicate disclosure by the property owner that
many of these barrels will be sold and distributed off site for
non-retail consumption. I'd like to know how many barrels
they're going to do.
Will the beer be bottled and canned on site? I think these are
questions that, frankly, I'm surprised that staff didn't address in
their due diligence that I'm aware of. I have asked staff for that
information.
We'd like to know what type of brew system the property
owners are installing and also the capacity. Is it a seven brew, a
10, or 30 or more?
Are they going to be capped? There's nothing currently in
anything that -- other than square footage constraints that limits
that.
Will there be a fermentation capacity, and what is this
Exhibit B
Page 10 of 103
fermentation capacity? That will also impact the number of
barrels.
How many barrels, bottles, cans of brewed beer will be stored
on the site? And what is the barrel storage capacity and the square
footage designated for the storage on the property? It's difficult to
tell from the Site Improvement Plan and the architecturals what
they're going to do there. What are the hours of operation for the
bar versus the industrial manufacturing on the property, the
number of employees that will be there for the beer manufacturing
business versus the bar business, copies of any distribution
agreements.
Will any of the SIC 5181 distribution occur in connection
with the industrial manufacturing of beer? We don't have an
answer to that.
Have federal/state applications and licenses been applied for?
And, frankly, can we get a copy of those prior to any determination
by the Hearing Examiner as to the nature of the business being
conducted on the property?
Will other beers be sold, and will the owner sell -- and, again,
this goes back to the interpretation question, but is it their intent to
sell 51 percent of the beer produced on the property on site retail as
an incident to the bar use, and then is their intent to have 49 percent
of that being sold wholesale off site? Is that their intent?
So I would respectfully ask, if we're not going to be
entitled -- I certainly wasn't advised before hearing. And we've
heard today that that will be decided. But I'd like to give these
questions, if I can -- I have a copy of the questions that I can
circulate and enter those into the record.
HEARING EXAMINER STRAIN: Okay.
Heidi?
MS. ASHTON-CICKO: The appellant doesn't get to ask
Exhibit B
Page 11 of 103
factual questions of the property owner. That's going to be up to
you as Hearing Examiner whether you want to ask those questions
or the property owner whether they want to disclose that
information.
HEARING EXAMINER STRAIN: The property owner is
represented here today, and we will find out how much the
representative of the property owner wishes to disclose, and it's at
their discretion.
I think staff is comfortable with the issuance of the OI at this
point. We'll talk further about the 51 versus 49 percentage issues
and see where that goes. Those were questions I had as well, so
we'll get into some of that.
Some of your questions may be off, necessarily, the exact
issue that we're here to discuss today, whether there is an industrial
use or not. I'm trying to focus on that with Mr. Bosi when we get
into our discussions later, so hopefully some of the questions
you're asking may be answered in that due correspondence.
MR. LEWIS: I appreciate that, and I think your instincts, I
would say, are correct. I mean, our position has been and is that
the industrial manufacturing of beer as defined by the SIC code
that was set out in the zoning verification letter by the staff, that
that use on the site as a permitted use, as a conditional use, or as an
accessory use is incongruent with the Comp Plan, and we would
ask certainly today -- and we'll be discussing it today in our
presentation.
Again, I'm hoping that this is not taking my time. We're
dealing with these procedural issues, so this is not hopefully going
toward my hour that I have to make my case.
HEARING EXAMINER STRAIN: We'll provide some
latitude, Mr. Lewis, but right now you've already started working
into the hour. We'll see where it goes. We don't need
Exhibit B
Page 12 of 103
redundancy. We need to stay on topic.
MR. LEWIS: I understand that.
HEARING EXAMINER STRAIN: And as long as you're
doing that and we're providing information that's new and useful,
we're fine.
MR. LEWIS: Yeah. And I just need to be able to
prepare -- present my case and get the evidence into the record, so I
appreciate your latitude there.
All right. So we have our experts. Again, we need to
qualify those experts. So, Attorney Ashton, what do you
recommend?
MS. ASHTON-CICKO: Well, you'll need to pro --
MR. LEWIS: There's a CV that we've attached. I can
certainly qualify him at this point. I have a CV attached under
Tab No. 24. And I'm happy at this point to qualify Mr. Stuart as
an expert unless, to expedite time, the other property owner or the
other party would stipulate to his qualifications. If not, I'm happy
to come up and we can qualify him as an expert.
HEARING EXAMINER STRAIN: I'll certainly take the
information you provided on Mr. Stuart, which came in just now
and it's rather lengthy, under consideration and render his expertise
position later on. In the meantime, we can -- you can proffer him
as an expert, and we can proceed under that premise.
MS. ASHTON-CICKO: That's acceptable.
MR. LEWIS: Okay. My preference would be to get that
determination made now.
HEARING EXAMINER STRAIN: I'm not going to sit here
and read, what, 15, 20 pages.
MR. LEWIS: If I can ask him some -- if I can ask him some
questions, we can lay the foundation.
HEARING EXAMINER STRAIN: I'll need to read what
Exhibit B
Page 13 of 103
you've provided first since you have provided it. It's going to be
part of the record. I'll have to read the whole thing.
MR. LEWIS: Okay. At this point, as related to your
determination, does the other party to the case, do they have any
objections to qualifying Mr. Stuart as an expert in the case?
HEARING EXAMINER STRAIN: When they come up for
their presentation, we can ask them at that time if that's
appropriate, unless Ms. Ashton tells me differently.
MS. ASHTON-CICKO: Well, the Hearing Examiner's
already told you to proceed as if he's an expert, so I think you can
proceed at this point.
MR. LEWIS: The concern I have is that under the
procedures, the rule procedure -- and I raised that in my procedural
objections, is that we give an hour presentation, then we have the
staff that's going to take another hour in opposition to our position,
and then we have the applicant or the property owner that's going
to make their hour presentation. We have the public here. We
have a large number of members of the public. So that's multiple
hours. And I am unable in my rebuttal -- I have a 10-minute
rebuttal -- to introduce new facts into the record and, frankly, 10
minutes isn't enough time to address two-and-a-half hours of new
information that I have to try to anticipate.
So I think, from a due process point of view, my client would
be impaired if we can't qualify him as an expert. I'd like to just
note if they have any objections.
MS. ASHTON-CICKO: Well, I think that the issue is
whether or not -- excuse me. But I think the issue is whether or
not the Hearing Examiner will accept opinion evidence from this
person that he's proffered. So to the extent you'll accept opinion
evidence and you'll weigh the evidence as part of your review, I
think we can proceed.
Exhibit B
Page 14 of 103
HEARING EXAMINER STRAIN: He has -- he's going to
be offering his opinions here today. I have no problem with that.
Now, whether or not they're going to be considered
expert -- you've dropped on this office today a one-and-a-half
inches or two inches of information that has not had the ability to
be read prior to the meeting.
MR. LEWIS: Mr. Stuart's well known -- he's well known in
the community. I can certainly qualify him.
HEARING EXAMINER STRAIN: Well, if he's well
known, I don't know him. I've seen -- his name's Greg Stuart. I
don't know if we've ever met before. I've been working in the
planning issues for over 16 years on public boards, so I honestly
will have to take a look at the information.
(Multiple speakers speaking.)
HEARING EXAMINER STRAIN: Mr. Lewis, wait till I
finish talking.
MS. ASHTON-CICKO: Mr. Chair, I'd recommend that you
go ahead, accept the opinion testimony, and you can -- as with any
expert, you can weigh their credibility as -- you know, as to
whether you think that you should give it great weight or not great
weight, so...
HEARING EXAMINER STRAIN: I have no idea what he's
going to be testifying to as well, so his expertise is going to have to
relate to whatever he is testifying to. He may be a brewmaster; I
don't know. But those are issues that I'm certainly going to be
trying to find out.
MR. LEWIS: Sure. And in answer to that question -- it is a
fair question -- he will be testifying as to land-use matters, and he's
an expert in the area of land use, and we will proffer him as such,
and I certainly respect however you decide to do that without
waiving our position.
Exhibit B
Page 15 of 103
Okay. So we will present his testimony. We do have, just
in the binder as well, under Tab No. 22, behind the case law, we
have an attorney affidavit from Stephen E. Thompson. I have his
resum0. He's a board certified real estate lawyer, and he's
opining, essentially, that an accessory use is one that's incident
and -- to a use permitted -- to a permitted use and does not permit
the creation of an independent commercial enterprise such as the
Site Improvement Plan contemplates as the applicant -- or the
property owner contemplates, and that the creation of an
independent commercial enterprise transforms an accessory use
into a principal use, and he cites a Florida Supreme Court case,
which I will get into as well. And I'd like to proffer that as expert
testimony as it relates to the limits of an accessory use under
Florida law. So with that, I will --
MS. ASHTON-CICKO: I did want to comment on that. I
do know that Mr. Thompson is a real estate lawyer, but I am not
aware that he's ever appeared before the Board of County
Commissioners, the Planning Commission, or the Hearing
Examiner in the capacity of land-use attorney.
MR. LEWIS: I can represent as his law partner that he has
appeared in the City of Naples, appears regularly. He was just
there last week. In the early days -- he's been practicing in town
for 30 years. My understanding is that he has, and I'm happy to
supplement that after you can consider the evidence today. But
my understanding is he has, certainly in the city.
MS. ASHTON-CICKO: Because the City of Naples has a
different code.
MR. LEWIS: Certainly I can opine today --
MS. ASHTON-CICKO: They don't use our code.
MR. LEWIS: I understand that. This is not code driven.
His testimony is related to Florida law as it relates to accessory
Exhibit B
Page 16 01103
uses. He's a very well-known developer of commercial real
estate, Publix-anchored centers, and we're very familiar with the
limits of what you can and can't do as relates to permitted uses,
conditional uses, and accessory uses. It's part of the wheelhouse
that we look at on a daily basis. So again we'd like to proffer him
as an expert.
MS. ASHTON-CICKO: That would be up to the Chair to
make a determination. I mean, that's going to be up to you to
make your determination based on the evidence they submit.
Yeah, when we get to that expert, I don't know, you'll have to
decide whether you want to accept it once you get the evidence.
HEARING EXAMINER STRAIN: The book that you've
provided today is going to be part of the record. I will review it as
such, and it will be part of the outcome of the decision that's issued.
MR. LEWIS: Thank you.
MS. ASHTON-CICKO: But it's quite a lengthy package
here. You haven't been provided this ahead of time, so...
HEARING EXAMINER STRAIN: I'm not going to review
it here today, no. It will be reviewed after -- the only time I can
review it is after the meeting.
MR. LEWIS: Certainly. And the procedures do allow, I
think, 30 days to render your decision.
HEARING EXAMINER STRAIN: That's right.
MR. LEWIS: Under Tab 1, you can see the site of the
industrial manufacturing site, brewery site. You can see on Tab 1,
Page 3, you can see my client's properties, two and three, and those
were -- those are also noted and located for your review.
On Tab 2 we've included a copy of the Future Land Use Map.
The second page is more of a blowup of the Bayshore mixed-use
district for your review. I think we stipulated, I think it's
undisputed, that the property is an urban designation. It's in the
Exhibit B
Page 17 of 103
mixed-use district. It's in the urban coastal fringe subdistrict, and
it's in the overlay as well. So we just wanted to set that out. And
our expert will discuss that further as it relates to the Comp Plan.
The Future Land Use Map is provided under Tab 3. And
you can see the C4 zoning designation. The second page of Tab 3,
we actually provided you with a very helpful zoning map blowup
depicting the brewery site and showing the overlay as well.
My client's property is a mixed-use project, and it is
consistent with the incentivizations and the intent under the
Comprehensive Plan in the neighborhood commercial to
incentivize pedestrian-friendly residential/commercial uses.
On Tab 4 I wanted to note that the Future Land Use Element
under Overview lA states, quote, most directly, this element
controls the location, type, and intensity and timing of new and
revised uses of land, and I would say this controls the location of
where we do industrial uses.
Policy 5.4, all applications and positions (sic) -- this is Page 2
of Tab 4. All applications and petitions for proposed
development shall be consistent with the Growth Management
Plan. And under Policy 7.5, the county shall encourage
mixed-use development.
What you'll hear today is that although the underlying C4 bar
use can occur, the Comprehensive Plan intent is to incentivize
redevelopment of pedestrian-friendly mixed-use. So you can
either have it in the same building or multiple residential combined
with commercial, but that's -- and the overlay -- the neighborhood
commercial overlay expressly implements this policy, 7.5.
Turning to Tab 5 under the definitions, I just wanted to make
it clear that when we talk today about accessory uses, it must be
both incidental and subordinate to the principal use. That's Tab 5,
Page 1, and that's consistent with Florida law. There's no real
Exhibit B
Page 18 of 103
incongruency. It must be both incidental and subordinate.
And I would like to encourage us to think about the
significance of incidental, because it has to be both, versus
subordinate. And to get into a subordinate relationship where you
have a primary use versus a use that is not as prevalent, that does
not address the incidental test. And it's a two-part test. And so
you could, for example, have a permitted use on the property that
does more business than the other multiple permitted uses on the
property. It's very common to have multiple uses occurring on a
property. They are still permitted uses, and they are not deemed
accessory uses, and the fact that you do more volume in one
business versus another does not somehow transform a permitted
use to an accessory use. So I wanted to make sure that we
understand the definition.
Incidental, as defined by the Supreme Court, would mean that
the use is one that is directed specifically -- it's not an independent
business.
So the example would be if, for example, you have a
restaurant in a hotel that only serves the hotel guests, then that
restaurant would be incidental to the hotel. But if that hotel began
to, for example, advertise to the public or operate independently of
the hotel where a commercial restaurant is not permitted in that
zoning district in a residential or hotel district, then the courts have
determined that that then is not an incident.
And you can have a portion of the food business that is
dedicated to, you know, serving guests. But when you begin to
advertise, you begin to distribute or -- distribute would be this case.
But when you either advertise or bring the public in to the
restaurant that are not guests of the hotel, the courts have said that
is not an accessory use. That now becomes a permitted use, or
you're transforming it into a permitted use and a lawful use.
Exhibit B
Page 19 of 103
Tab 6 is the C4 designation. I just wanted to mention that the
C4 designation under Tab 1 typically uses the 1987 SIC
classification. Staff has opined in the zoning letter that under Item
48, which is the drinking establishments -- and the SIC code for
that is 5813. It's disputed in the zoning letter that this is a SIC
code -- that the SIP that they're seeking is certainly what they were
asking for at the time of the zoning verification letter -- is a 5813
drinking establishment. That's what that is.
Now, I provided definitions of what a SIC code drinking
establishment is. That's helpful to find, and you can see that in
your tab under Tab 17.
A drinking establishment is for retail consumption on site.
It's not for wholesale distribution. It doesn't allow bottling,
packaging, cans, whatnot. It's retail on site.
So I think the challenge they're going to have today, frankly,
and I think the legal requirement, is they're going to have to show
how wholesale manufacturing -- wholesale, not retail, for off-site
consumption is an incident to on-site retail consumption. But the
SIC code that they're going to be relying on to do that is under C4.
And our expert today is going to testify that you can't get an
accessory use -- the only accessory use in the neighborhood
commercial -- neighborhood commercial under the overlay -- the
only accessory use that's nonresidential that's permitted there is
storage outdoor.
And, specifically, in that overlay, they identify -- and you'll
see the tab if you look under the overlay for the Bayshore Drive
mixed-use district -- and that would be Tab No. 7. Why don't we
just go there real quick.
As we talked about, the purpose is to encourage a mix of
low-intensity commercial and residential uses including mixed-use
projects and single buildings. So the intent is to create a
Exhibit B
Page 20 of 103
pedestrian-friendly -- and I see members of the Board of County
Commissioners here. I think they understand that that's the intent
is to create a pedestrian-friendly residential environment. That's
not what this is. I mean, it is relying on underlying zoning, but
that's not what this is doing.
If you flip over to Page 3, on Page 3 of Tab 7 you'll see
Roman Numeral 2A. It says, the table of uses identifies permitted
uses, accessory uses, and conditional uses. Now, there is no akin
to the C4 where they talk about accessory uses that are subordinate
and incidental. There's none of that in here. They just lay out
what are the permitted accessory uses.
And, in fact, under 2B it says any use not listed is
prohibited -- is prohibited. So there's no misunderstanding.
And, by the way, there's been no determination that -- and there's
been no request that I'm aware of that the manufacturing of beer for
distribution and consumption off site is akin to outdoor storage. I
think that would be ludicrous. But outdoor storage is the
only -- the only nonresidential accessory use permitted in that
overlay so, therefore, they are not able to bring this in through that
overlay.
Now, how does that interplay? Well, if you look at Tab
7 -- and this is an important provision under 2.03.07.3.B.
Property owners within the Bayshore mixed-use district may
establish use, densities, and intensities. So here they're trying to
establish a use. So they can do that in accordance -- they have two
options. Option A, in accordance with the underlying LDC,
which is C4. That's what they did with their zoning verification
letter. They tried to get that approved. Now, we disagree with
staff on that, but that's what they tried to do. And staff said, you
can bring it in C4 as an accessory use is what staff said, or they can
bring it in it -- it says, or under the more -- or maybe elect to
Exhibit B
Page 21 of 103
develop under the provisions of the applicable BMUD subdistrict.
Now, they haven't -- they're not bringing in any sort of
multi-use, you know, residential mixed-use project. They're not
looking to do that, so -- and they can't bring this as an accessory
use under that.
So they're -- they are trying to bring in industrial
manufacturing of beer as an incident to what permitted use -- it's
also tied to a permitted use. And the permitted use here is a
drinking establishment, which is for on-site retail consumption.
So I don't know -- and that's why we're scratching our heads.
I have no idea how they're going to be able -- and don't let them
divert you from the real issue, but I don't know how you can
articulate a reason why wholesale distribution of product, how that
is an incident to -- which is all off site, packing, distribution, all
that, how that's an incident to on-site consumption.
HEARING EXAMINER STRAIN: Mr. Lewis, when you
had sent your email out yesterday, one of the points you made is
that you would prefer, if I could, to hold off my questions till the
end of your presentation.
MR. LEWIS: Yes.
HEARING EXAMINER STRAIN: So my reluctance to
speak out as you've brought issues up is not because I agree with
you or disagree. It's simply I'm going to try to hold off until you
finish. So I just want you to know that, for the record.
MR. LEWIS: I appreciate that.
All right. So let me just address a couple of things. I did
see -- and then I'll have our expert come up. I did see several
emails, and I want to commend the property owner. They've done
a great job rallying the community. I'm not sure how many of the
members of the community understand the commercial nature of
what they're doing. They may be -- some may be supportive;
Exhibit B
Page 22 of 103
some may not.
But I tried to essentially summarize what the residents were
saying as it relates to the project. The first thing that they articulate
is that the owners brought -- they bought the property in reliance
on the zoning verification letter. So I want you to start -- let's start
with that. And the zoning verification letter is under Tab 9.
So in that letter -- this is back in October 2nd, 2015. Now,
again, I don't know this to be fact, but what I'm seeing in those
letters is the implication that they were potentially under contract
or they were considering the purchase, and then they made the
decision to buy it in relation on the letter. I don't know that.
We'll hear that later perhaps.
But they asked staff if they could do a lounge, really,
basically a bar, that they could do an accessory microbrewery, an
accessory. They didn't ask for a permitted or anything like that, or
conditional, but an accessory. So they knew that. They didn't
ask -- for example, when they came in later for the project
description, they asked for industrial manufacturing. They were
going to redevelop it as basically an industrial manufacturing,
which is completely disingenuous from what they said -- that was
in 2016 -- from what they said back in October.
Then they said, tours of the brewery, which is fine;
neighborhood gathering, fine; live music, fine; food, fine; and then
they -- sale of T-shirts, whatnot.
So staff, in their analysis, says, look, this looks to us
like -- under the SIC classification, or the C4, this is a bar. What
you've described is a bar. It's a 5813 bar. That's what you've got.
And then staff says that we're going to allow the
manufacturing of beer on a limited basis, but it needs to be an
accessory to the bar. To the bar. Again, the bar is a retail on-site
consumption operation. That's the business.
Exhibit B
Page 23 of 103
So you're producing beer for retail use on the site. That's
where you get into, you know, how much -- what's the volume?
Are you doing 3,000 gallons a year? Are you doing -- or barrels?
10,000? What are you doing? Is it enough to just take care of
what the people need when they come to the bar, or are you going
to become a wholesale business?
The staff further went on to say that the brewery, as they
characterize it -- which is a C4 classification. It's not a
classification under the neighborhood mixed-use commercial
because it can't, as we talked about. A C4 classification, they said
that, as a use on the property, as a permitted use -- it's not a
permitted use, and it's not a conditional use. So I think we're all in
agreement there.
So, really, the sole question for you to look at is under C4.
Does C4 allow a microbrewery, a brewery, basically, industrial
manufacturing of beer. Do they allow that -- is it permitted to
occur on the site under C as an accessory use?
We say first the Comp Plan says absolutely not. You can't
do any industrial per the Comp Plan. As an alternative, if you
disagree with that or if later the courts disagree with that
interpretation, then the analysis would be it certainly has to be both
subordinate and incidental, which I don't know how they're going
to be able to articulate how -- you know, as we talked about,
wholesale distribution off site as incidental or as incident to your
retail operation.
So the property owners are saying, look, they got a zoning
letter. You know, I understand that. They relied on it. And I
understand that. That's part of the talking points. But I don't
think they're aware of these facts.
Now, there's also a clear recognition of under Florida law that
you can't rely on promissory estoppel to cure ultra vires acts of
Exhibit B
Page 24 of 103
government officials. So if the courts conclude that the county's
Comprehensive Plan does not allow industrial manufacturing of
beer as a permitted, conditional, or accessory use, because it is
fully incongruent with the Comp Plan, then the estoppel letter does
not amend the Comprehensive Plan, and it doesn't make an
unlawful use lawful.
In other words, you can't amend your Comprehensive Plan
through a zoning verification letter, and that makes sense. That's
why the courts have a very long line of Ultra Vires Act. I'm sorry
that the mistake was made, but you can't amend your Comp Plan.
The front door approach would be to do a text amendment or
to amend the Comp Plan to allow for industrial uses, which has not
occurred.
Now, the second class of arguments is that -- well, let me
continue with this as well. Assuming that it's later determined
that industrial manufacturing of beer can be an accessory in C4 to a
permitted use and the owners were notified in their zoning
verification that a brewery is not a permitted use on the property
and that any manufacturing of beer must be incidental and
subordinate to the retail sale of the premises -- in fact, the letter
even goes on to say that it needs to -- let me get the exact wording.
It's on Tab 9 -- needs to be accessory on a limited basis. That's the
language under -- on Page 2, Tab 9. Staff says, accessory on a
limited basis.
So as such, the owners were on notice that they could not
engage in the business of wholesale distribution of beer for off-site
consumption.
Now, despite this clear disclosure in the zoning verification
letter that manufacturing of beer is prohibited, on July 21st -- and
this is important -- 2016 -- I don't know if the residents are aware of
this, but the owners, they filed a Site Improvement Plan, and they
Exhibit B
Page 25 of 103
were seeking approval of, quote, industrial manufacturing of beer
and related uses with site work.
Now, I want you to turn to -- Tab No. 10. So in 2016, in
July, they came in, and they knew that they couldn't do this, and
they said, Dear Mr. Paul, the above-referenced projects consist of a
6,000-square-foot building renovation for industrial
manufacturing of beer and related uses.
Now, why would you do that? You knew -- and the
residents seem to think, well, they relied on the zoning letter that
told them that they -- you know, as we went over that testimony.
So why do owners do this? Well, they do this because later
they want to estop the government -- and I've seen case law. I
mean, I'm very familiar with the law on this -- from enforcing their
zoning ordinances by asserting that approvals were given -- I've
seen lots of land-use lawyers in town use this -- the prior approvals
done way back when were given for that use, and they were
approved. And it's all part of the development order approval.
Look over at the next sheet, Page 2. You'll see -- this is on
the GMP public portal. I printed it back in March 2017,
6,000-square-foot building for manufacturing of beer and related
uses. Industrial manufacturing of beer. That was in March of
2017.
And, by the way, I know in the staff report there's discussion
about, well, it's really now a bar, and this is just -- this is just
accessory. It's just a small piece of it. But I've looked at the
layout. It hasn't really changed from the original submission.
There really has been no significant change, and I'll show
you -- there's pictures of that as well here in a minute.
Let's turn to the Site Development Plan, which is on Page 3.
I did a blowup on Page 4. This is a blowup. This is the approved
Site Development Plan, and they're showing only 22,000 -- or
Exhibit B
Page 26 of 103
2,245 -- 2,245 square feet of tables and chairs. That's for their bar.
The rest is kitchen. They have storage, which I presume
that's -- and if you look at the -- there's some other exhibits here.
If you look at the square footage, it looks to me like that's all going
to be part of the brewery. They do have some business area.
Maybe you divide half of the business for one business, one for the
other business, but these are independent businesses.
So it's not fair to attribute all that business area to the bar.
And I'm sure they're going to be -- you know, they're going to use
that for their -- they have to have some office for their wholesale
distribution off-site business.
Storage, and then they have business area, and then they have
kitchen. You know, the kitchen, I'm presuming they're using
that -- they're not really producing food under their Site
Improvement Plan. They're just bringing in packaged peanuts and
things. So I don't know what -- so it's really -- my assumption is
that's going to be for -- until established, it's for the manufacturing.
If you flip over -- keep flipping -- there's -- several pages into
this it's actually a different sequencing of the numbering, but it's
going to be 4 and 5 as you flip back.
But I want to look at this 5. This is part of the -- so you
have -- the first stack was for the Site Improvement Plan. The
second stack is for the architectural. They did an alternative
architectural submission, design submission. And this is part of
the approved document that's -- you know, the county's approved
it. We're appealing.
It says, this project is an application for additional renovation
of an existing metal frame structure. It is located in Collier
County, Bayshore Drive Gateway District. The project will
consist of renovations to a 6,065-square-foot existing structure into
a microbrewery, industrial manufacturing of beer, that conforms to
Exhibit B
Page 27 of 103
the C4 and BMUD and C zoning district. No, it doesn't.
HEARING EXAMINER STRAIN: Well, just I don't want
to -- I'm trying not to interrupt you until you finish, but you just
read something that isn't in this document. It says on the third
line, project will consist of renovations of 6,065 square feet of the
existing structure into a microbrewery that conforms to the CB
MUD district.
You said microbrewery that is industrial zoning. Where did
you get that information from that's not on this?
MR. LEWIS: Because the staff opined -- that's a fair
question.
HEARING EXAMINER STRAIN: But were you
reading -- you're trying to tell us what this page says? Because if
you did, that's not what the page says.
MR. LEWIS: Okay. So the text says "microbrewery."
HEARING EXAMINER STRAIN: Okay.
MR. LEWIS: The analysis is that -- in the zoning
verification letter the staff said what is an accessory
microbrewery? They said that the -- that the analysis and the
interpretation letter, the staff has concluded in their interpretation
letter that that is -- the closest use to that is an industrial
manufacturing of beer and that that's not permitted.
HEARING EXAMINER STRAIN: Okay.
MR. LEWIS: It's an industrial use.
HEARING EXAMINER STRAIN: Doug, I'm not going to
belabor this any further. I simply wanted to point out, if you're
going to read something that's supposed to be text supplied and
approved by the county staff, you need to read it accurately and
stop inserting editorials.
MR. LEWIS: Hopefully, when we go back and look at the
tape, I said structure into a microbrewery that conforms. I am
Exhibit B
Page 28 of 103
equating, by my own analysis, that when you approve a
microbrewery, what is a microbrewery? What's the
closest -- because it's under the C4. So we have to look for SIC
code. What is the closest SIC code that would align to a
microbrewery?
HEARING EXAMINER STRAIN: That's something we're
going to get into before the -- go ahead.
MS. ASHTON-CICKO: Mr. Chair, as you know, this is the
appeal of the OI. The time frame to appeal the zoning verification
letter expired long ago. So we're here on the OI appeal, official
interpretation appeal, and the appeal of the Site Improvement Plan.
MR. LEWIS: Just so we're clear on the record, we are not
appealing today the zoning verification letter. The courts could
decide as to whether or not that is ultra vires or not, but as it relates
to the Comp Plan.
But as it relates to the appeal of the Site Improvement Plan,
we are saying here that they've -- in the project summary it's
describing an existing structure into a microbrewery -- it doesn't
say bar -- with an accessory microbrewery.
HEARING EXAMINER STRAIN: That's fine. I'm only
asking, if you're going to read something from the text that was
approved and reviewed by staff--
MR. LEWIS: The staff says a microbrewery.
HEARING EXAMINER STRAIN: -- the text that's there.
That's all I'm asking.
MR. LEWIS: Thank you. Yeah, the text says a
microbrewery. I will maintain that the only use that could, under
the SIC code, code system that we have, the only use that's the
closest proximity to that -- and staff has concluded with that -- is an
industrial manufacturing of beer use, so that's what we're -- that's
my analysis.
Exhibit B
Page 29 of 103
Okay. What I'd like to do is, at this point, introduce -- have
Greg come up. He's going to walk you through the Comp Plan
and some analysis, and I'll turn the time over to him. Then I have
some concluding remarks.
HEARING EXAMINER STRAIN: Thank you.
Mr. Stuart, if you don't mind, just give me a very brief part of
your background that's included in, I'm assuming, the dozen or 15
pages that were submitted with this packet.
MR. STUART: Yes, Mr. Hearing Examiner. Good
morning.
HEARING EXAMINER STRAIN: Mr. Strain is fine.
MR. STUART: Good morning, Mr. Strain, counsel, staff.
Good to see you again, Ray, fellow members of the audience, and
counsel.
Greg Stuart, for the record, of Stuart & Associates Planning
and Design Services. My office is in Fort Myers, 7910
Summerlin Lakes Drive in Fort Myers.
As just a quick overview, as for educational qualifications,
my bachelors of arts is from the University of Florida in urban
studies with high honors; my masters is in urban regional planning,
full HUD fellowship. My post-graduate work, I was a fellow at
the Danish Academy of Fine Arts in their College of Architecture,
and my specialty was urban design.
I've been practicing for a little over 30 years. I've practiced
in -- I have had experience in 14 Florida counties, including
Collier. I've done a lot of work in Collier over the years, both in
permitting, project management, real estate analysis, that type of
thing. I've been qualified in a Lee County Circuit of Florida
Appellate and Seattle -- actually, King County, Washington, as an
expert. I've probably had around 120 to 130 judicial and
quasi-judicial cases.
Exhibit B
Page 30 of 103
My qualifications are in Growth Management and land-use
planning, urban design, real estate development, and analysis and
comprehensive planning.
HEARING EXAMINER STRAIN: Okay. And I have just
one question.
MR. STUART: Yes, sir.
HEARING EXAMINER STRAIN: In the years that you've
been practicing, how many cases have you presented or been part
of that have been in the public testimony in front of the boards in
front of the unincorporated area of Collier County? Not including
the City of Naples; the unincorporated area.
MR. STUART: Sure. Let's say the -- excuse me -- the
Vincentian PUD, which now is an overlay mixed-use district; the
PRC&M PUD, which is off-- near Radio and Davis; Sierra
Meadows PUD, which is off of Rattlesnake Hammock and Collier
Boulevard; the Edison Village PUD. Yes, sir.
HEARING EXAMINER STRAIN: Did you work on these,
or did you actually provide public testimony in front of the
Planning Commission and the Board of County Commissioners?
MR. STUART: Yes, both.
HEARING EXAMINER STRAIN: I don't remember you.
I'm sorry.
MR. STUART: I remember you, though.
HEARING EXAMINER STRAIN: Your name --
MR. STUART: Well, I probably had more hair then.
HEARING EXAMINER STRAIN: And I probably always
had this much hair, and that's why people tend to recognize me.
I'm sorry, I did not recognize your name when you were first
introduced, so I appreciate that.
MR. STUART: No, but I have, and then also, just as an
anecdote, in the -- a while back I was doing a lot of work with the
Exhibit B
Page 31 of 103
Collier County Attorney's Office in their County Barn Road.
improvement project, the Golden Gate flyway project and some
other right-of-way combination cases. So I've had working
experience in the county, certainly.
HEARING EXAMINER STRAIN: Thank you. That's
what was important. I appreciate it.
MR. STUART: Okay. Then my presentation in chief, I'll
try not to cover the points that counsel covered.
Again, the underlying zoning is C4 and, again, they're seeking
a 5813 drinking place and with an accessory microbrewery to that.
According to the files that I've read, they're looking at around 150
customers in terms of seating occupancy and capacity. Total
occupancy at 168.
There's a discrepancy in the facility size. I've seen two sets of
numbers. One total at 6,000 square feet with 2585 feet, which is
equal to 43 percent, that number would be for the manufacturing of
the beer, and then another which was from the October 16th
alternative architectural submittal. The number came out to
6,047, of which 48 percent equaled to 2,914.
So either number, my conclusions are the same, but I wanted
to point that out because I'm not sure exactly how much.
There are a number of unknowns, as counsel pointed out, in
terms of barrel capacity, fermentation capacity. The licensing, no
information has been permitted. As one example, I am an
owner -- it's coincidental, but I'm an owner and partner of a
microbrewery in Orlando, downtown Orlando. It's the Orange
County Brewers located on Jefferson and Orange in Downtown
Orlando. In addition, I'm part owner in a pub.
When we had to go through the permitting process, staff
wanted to see copies of all of our license applications to get a
handle on some of the knowns and unknowns that we're dealing
Exhibit B
Page 32 of 103
here, and I just point that out. That information is not in the file.
So here we are.
If I can make just two overriding points: Manufacturing is not
permitted in this land use, the urban coastal fringe. It's not.
Manufacturing is an industrial use. Manufacturing is not a
residential use. It's not a commercial use, retail use. It's not civic
or institutional use. It's not a recreational use. The only use that
manufacturing fits into is -- manufacturing, that is, is industrial.
Whether it's light industrial or heavy industrial, that remains to be
seen.
If you look at the Collier County Comp Plan as in Exhibits 1,
2 and 4, again, it's in the urban -- the property's in the urban coastal.
fringe within the urban mixed-use district, and then there's the
Bayshore mixed-use development overlay. If you look at the
Comp Plan, it's very clear. It says, industrial manufacturing uses,
such as the manufacturing of beer, is only permitted as a permitted
accessory conditional use in urban industrial districts, urban
commercial districts, and in some interstate interchange activity
centers. Those are the three land uses. If, in fact, this was a legal
use, then there would be some type of language saying, in the
Bayshore overlay element -- well, you know, and we also will
allow for some select light industrial uses.
There's a complete absence of language. You have to take
the Comp Plan explicitly, you know. Again, there are three
land-use categories that allow for this.
And, also, if you look at Subparagraph 7, the mixed-use
residential district, counsel point out that the purpose for
mixed-use districts is to have more pedestrian-oriented
neighborhood type uses. A pub or a restaurant or a bar or
neighborhood uses absolutely. Possibly even a microbrewery that
serves the customers maybe, a -- may be a neighborhood-type use,
Exhibit B
Page 33 of 103
a pedestrian-type use.
But when you get into the wholesale of such product, it is no
longer a neighborhood use. It's clearly a light industrial use
because it's manufacturing a product for the general public, and I'll
expand on that in a little bit.
If you look at Paragraph F, the Bayshore/Gateway Triangle
Redevelopment Overlay, which is in Exhibit 7, again, it goes into
the intent and the purpose of-- you all are very familiar with it
more so than I because you live in the neighborhood; you deal with
this. So I don't need to read verbatim.
My point on that is when you go through that section, again, it
doesn't identify any type of manufacturing or light industrial uses.
It just doesn't. There's an absence of language.
In order for this to go forward on a legal basis, there's no
doubt in my mind that there's a -- that there needs a text
amendment to the overlay language in the Comp Plan to then
implement the type of distribution oriented microbreweries that I
believe the applicant is seeking.
When you look at, again, Subparagraph 7 of the
Bayshore/Gateway Triangle, it gets into the properties are allowed
to use the underlying zoning district if they don't choose to go
forward with the mixed -- the Bayshore mixed-use development
standards, and that's what we have here, it's my understanding, and
from the review of the file it is my clear understanding that they're
relying on the C4. They're not relying on the Bayshore mixed-use
development standards.
And, again, when you read that, it doesn't state that the
introduction of new uses under existing zoning are allowed. I
mean, you have to go through a standard public-hearing process,
you know, with elected officials voting. I mentioned the
Comprehensive Plan. I think that's a good case in point.
Exhibit B
Page 34 of 103
And, again, as counsel pointed out, the mixed-use
development is inherently oriented; the goal is to try for
pedestrian-friendly neighborhoods and the like.
So, again, the urban coastal fringe land use is oriented
towards -- towards the restaurant -- or the bar, but not towards
wholesale distribution of the product that's going to be coming out
of the microbrewery.
Basically, the project's requested accessory use, as currently
defined, a condition, again, is not attempting to incorporate
Bayshore mixed-use development neighborhood community
objectives. It's not trying to promote neighborhood interconnection
and pedestrian access and mixed uses. And, again, the
manufacturing of this product is not consistent with the Comp
Plan. Only in the industrial, general commercial, and some select
interchange areas can you have that.
So going into the actual code, if you look, I mean -- and,
again, it's obvious. You know, the code has to be internally
consistent with the Comprehensive Plan. It can't go asunder. It
can't be parallel to it. It has to fall under it. The Comp Plan is a
lead document. So if you look at the Bayshore -- under a
2.03 -- excuse me, 2.03.07.4.a.i, under the Bayshore Drive Mixed
Use Overlay Neighborhood Commercial Subdistrict, the purpose
and intent of the subdistrict is to encourage a mix of low intensity
commercial and residential uses. And it doesn't say low intensity
commercial and residential and industrial and manufacturing uses.
It's just commercial and residential uses, and then it goes on to
describe those types of uses.
Furthermore, when you get into actually the use category and
table, which is 2.03.07.4.b, which -- let's see, I think that's in
Exhibit 7. Anyway, under -- it allows for, under retail and
restaurant, it allows for this, okay. It allows for the rest -- or,
Exhibit B
Page 35 of 103
excuse me. I keep saying "the restaurant." It allows for the bar,
pub, and, you know, if they want to morph into a restaurant, it
allows that. The table of uses are real clear.
And then when you look at 2.03.07.4.b.i.f, it goes on,
manufacturing, wholesale, and storage, and it says under this
subdistrict: Premises available for the creation, assembly,
storage, and repair of items including their wholesale retail use.
Staff pointed that out in their staff report. But then it defines those
uses, Mr. Hearing Examiner. It defines the uses as six: Labs,
laundry/dry cleaning, media production, metal product fabrication,
repair shops, and R&D -- excuse me, seven, seven uses.
HEARING EXAMINER STRAIN: Actually, I think there's
nine.
MR. STUART: Then I missed --
HEARING EXAMINER STRAIN: Well --
MR. STUART: Then which ones did I miss, Mr. Hearing
Examiner?
HEARING EXAMINER STRAIN: The printout that I
pulled from MUNI code this morning, just to try to get the most
recent, it has 1 through 9. But I'm not sure what you're reading
from.
MR. STUART: MUNI code online. I must have missed
that then.
HEARING EXAMINER STRAIN: It's probably
something.
MR. STUART: Okay.
HEARING EXAMINER STRAIN: It may not be that
relevant, but I was just --
MR. STUART: I hope not.
But of those uses, metal product fabrication clearly is a light
industrial manufacturing use that's not allowed; possibly even
Exhibit B
Page 36 of 103
repair shops. It depends on what is being repaired, of course.
So here you have a very unique situation that the code is not
consistent with the Comprehensive Plan, because the
Comprehensive Plan, again, allows for these types of light
industrial manufacturing uses in three categories, yet the Land
Development Code allows for one or two.
So certainly I would encourage you to look at that, because I
think that needs -- that needs to be stricken, the Land Development
Code needs to be amended, or the Comprehensive Plan needs to be
amended to allow for that. But right now, you know, strictly
speaking, it's not permitted.
So looking at the staff report -- and I will say -- because, you
know, on the face value, when I took a look at the case, wow, this
is really neat. You know, I mean, I'm an owner of a microbrewery.
It's a neat use. You know, neighborhood pub. You have -- we
have 10 different types of beers. I mean, what's not to like? I
mean, but if you start dialing into this issue and really look at the
bigger picture, there are a number of issues that are of very serious
concern, and they all relate to, again, the wholesale distribution of
the product.
So staff, basically, has a number of points, four major points.
The first point is that the subordinate relationship is evidenced by
the percentage of building square foot dedicated to the drinking
component versus the brewery component. And, again, that's
where you have either the 2,585 or the 2,985.
So somewhere between 43 percent and 48 percent. It's still
under 50 percent so, therefore, it's subordinate and, therefore, it's a
permitted accessory use.
But the issue really is Comprehensive Plan consistency and
whether the Land Development Code identifies as a permitted, as a
conditional, or as an accessory use, whether it's specified, and it
Exhibit B
Page 37 of 103
does not.
The second point with staff is traffic counts. A subordinate
relationship is established by the traffic counts. I think they
had -- I forget the total number, but six p.m. peak hour for the
distribution component. But, again, it's the wrong merit and, also,
it's important to point out that the TIS doesn't take into account
potential storage capacity, because if you have storage capacity,
it's -- you inherently do not have a lot of trucks coming in and out
because you're storing it on site, and then you could have one
truck. So, again, it's not indicative. There's no causality.
The third point is that a subordinate relationship is evidenced
by the direct interconnection with the beer garden as a source of
the beer product, and that is correct as it pertains to the
consumption on premise. But my testimony, in addition to the
comprehensive planning consistency is that, you know, this is not
just on-premise consumption, you know. It may be shipped out,
and then it's wholesale, and it's a different game.
As counsel said, if you look at the BMUD-NC category, the
only legally permitted accessory use is open storage. And there's,
you know, the documents there. And, again, based upon the
definition, and in order to be consistent with both the code and,
more important, the Comprehensive Plan, the bar has to be the sole
source of the beer consumption. It has to. It has to be consumed
on site.
In our particular case with Orange County Brewers, yes. We
also sell Growlers, you know, 16-, 32-ounce jugs, if you will,
people -- you know, you buy the jug, you buy the beer, take it
home. But that's not what we're talking about. We're talking
about wholesale distribution.
So, again, when you look at the subordinates by the
interconnection, yes, on the small scale, but if you step back and if
Exhibit B
Page 38 of 103
they start selling at -- and I'll get into this right now, the 49 percent
ratio, then it's not an accessory use. Staffs proposed condition to
try to make sure that this stays as a legal accessory use is to limit
the gross sales to 49 percent or less of the total sales, and there's
monitoring involved, annual monitoring.
But the standard, again, is not relevant. I mean, what they're
saying -- what the condition says is that if you have a hundred
dollars a sale, a $2 difference makes all the difference between
having it as a permitted use by right versus a legal accessory use; a
$2 difference. It doesn't work like that. A $2 difference doesn't
differentiate a permitted use from a legal accessory use. It doesn't
work. It's the wrong -- it's the wrong metric.
HEARING EXAMINER STRAIN: Mr. Stuart?
MR. STUART: Yes, sir.
HEARING EXAMINER STRAIN: Are you basically
claiming, then, that a microbrewery or anyplace that brews beer is
considered an industrial use?
MR. STUART: Yes, yes.
HEARING EXAMINER STRAIN: Okay. So the people
that create home craft beers in residential neighborhoods in their
garages and stuff, you would consider that an industrial use?
MR. STUART: If they are selling their product, that
wouldn't be allowed. That wouldn't be permitted as a home
occupancy.
HEARING EXAMINER STRAIN: Let's back up, though.
What constitutes the industrial use? Is it the production of the
beer or the sale of the beer?
MR. STUART: Actually both.
HEARING EXAMINER STRAIN: Okay. So if someone
produces beer, the method by which they sell it would be the
trigger by which you would think it's an industrial use versus a
Exhibit B
Page 39 of 103
nonindustrial use?
MR. STUART: If you're using someone in their garage
with --
HEARING EXAMINER STRAIN: I just say any quantity,
because your -- I'm trying to understand what is your trigger for
saying it's industrial versus a craft component, like a specialty craft
market of some type. Maybe not related to beer, but there are
other crafts out there that are produced and sold on premises.
Even pizzas are produced in pizza ovens and sold, and a lot of
those are in deliveries.
MR. STUART: Yes.
HEARING EXAMINER STRAIN: How do you
differentiate this as industrial use versus those uses, similar uses?
MR. STUART: Well, pizza would be classified under the
food/restaurant food service type categories, which would be
retail --
HEARING EXAMINER STRAIN: Right.
MR. STUART: -- versus this is as manufacturing. It
doesn't fit anywhere else.
HEARING EXAMINER STRAIN: But it's manufacturing
because you believe it's sold wholesale? It that how it hooks
together for you?
MR. STUART: Well, it's sold wholesale maybe. Because,
again, there's -- the information's rather thin. But the actual plant,
the physical plant, is a manufacturing plant. You cook the hops,
you transfer the hops into the fermentation, you ferment for two
weeks, you then stream it into a -- into your barrels and refrigerated
areas for on tap or for off sale. You always end up pressurizing
and pressure cleaning the type of vats to make sure you meet
various health and safety standards. It is a manufacturing -- it's a
manufacturing process.
Exhibit B
Page 40 of 103
HEARING EXAMINER STRAIN: But if this wasn't selling
wholesale and they were manufacturing, as you want to term it, on
site to sell within the building, they wouldn't be considered
industrial; is that your position?
MR. STUART: No, because the -- I take a strict
constructivist position on the Comprehensive Plan, and the
Comprehensive Plan calls out three areas for
industrial/manufacturing, and in this particular case if they wanted
to have that, you need a text amendment for the Bayshore
mixed-use district, so...
HEARING EXAMINER STRAIN: And that's another
point. I understand now why you referred to six uses in the
manufacturing wholesale segment of the table. There are nine
listed, but only six are relevant; only six are permitted. So now I
think we're working from the same table.
MR. STUART: Thank you.
HEARING EXAMINER STRAIN: You just didn't
count -- if you had said there are nine and only six, I would have
understood it better. I thought you were looking at just six.
In those six, when you did your analysis -- and the reason I'm
asking you questions now it's wrapping up to over an hour.
MR. STUART: Yes. I'm very sorry.
HEARING EXAMINER STRAIN: We're still going to go
through this. I'm not going to cut you off. I just want to finish up
with some issues I need to resolve.
How did you determine -- maybe you or the applicants -- the
legal counsel. I noticed that you're insisting there are no industrial
uses allowed in the Bayshore area. How did you determine that?
MR. STUART: Well, by policy, by reviewing of the
Comprehensive Plan, not in regards to --
HEARING EXAMINER STRAIN: Well, the Bayshore
Exhibit B
Page 41 of 103
overlay is part of the Comprehensive Plan.
MR. STUART: Yes. By reviewing the Comprehensive
Plan.
HEARING EXAMINER STRAIN: The Bayshore list of
elements that you've pulled out of the tables and the LDC, which
has been deemed to be consistent with the Comp Plan, allows
manufacturing and wholesale, and it lists a series of 1 through 9, of
which six of those are allowed.
MR. STUART: Yes.
HEARING EXAMINER STRAIN: Have you checked the
SIC codes that attach to each one of those uses to determine what
other zoning districts they're allowed in within Collier County?
MR. STUART: No. I was really focusing in on the uses
that, you know, would be, at least to my professional opinion,
evidence of manufacturing. So those were the uses.
HEARING EXAMINER STRAIN: Okay. So you really
don't know if any of those other six uses that are permitted under
the manufacturing and wholesale section of the Bayshore overlay
are, in fact, not found in an industrial category in Collier County?
MR. STUART: I haven't done that analysis, sir.
HEARING EXAMINER STRAIN: Okay. And this is just
a sidenote. You mentioned your operation in Orlando. Just out
of curiosity, is that a -- do you actually produce beer there on that
location?
MR. STUART: Oh, yeah. It's a microbrewery. We have
a -- we have a -- excuse me. We have a seven-barrel system with
a 14-barrel fermentation ancillary system. And we opened this
past August, and we're looking at around 2,000 barrels annually.
HEARING EXAMINER STRAIN: Are you -- what zoning
are you in, that location, do you know?
MR. STUART: The Downtown Orlando has a -- has a -- it's
Exhibit B
Page 42 of 103
an overlay for entertainment, special uses. It's -- I would have to
get back to you in terms of the specific --
HEARING EXAMINER STRAIN: What's the name of the
company?
MR. STUART: Orange County Brewers, B-r-e-w-e-r-s.
You can Google it, go online.
HEARING EXAMINER STRAIN: Just out of curiosity, I
will. Thank you.
MR. STUART: And, look, I'm not standing here saying I am
an expert in production. I'm just saying that I have working
knowledge in this. You know, I was involved in the finance and
stuff And so when I see the setup, yes, it's manufacturing, you
know. I mean, it is what it is.
HEARING EXAMINER STRAIN: The storage capacity,
you mentioned that the additional storage capacity would have an
impact. Why is that a concern?
MR. STUART: Well, it's not a concern per se. Staff was
using traffic counts as a metric to substantiate that it's subordinate.
And my point is the traffic -- and I'll elaborate on this in just a bit.
But traffic counts -- if you have ample storage, then -- and, again, it
depends on the production. It depends on the volume. But if you
have storage, then you, inherently, may not have that many truck
trips at all because you're storing the product on site.
HEARING EXAMINER STRAIN: Right. And limit your
trips then by --
MR. STUART: Yes.
HEARING EXAMINER STRAIN: So that's a bad thing?
MR. STUART: No, I'm not saying it's bad. I'm saying that
staff-- if you look at the staff report, they're using that as evidence
of a subordinate relationship. And my point is that it's not
evidence of a subordinate relationship. They're using the wrong
Exhibit B
Page 43 of 103
metric.
HEARING EXAMINER STRAIN: Are you aware of the
comparable/compatible language in BID and, basically -- it's
actually, no, b.i.f. If it says -- I'm sorry, b.ii.b. I'll get it right yet.
It says, any use not listed in the table of uses is prohibited unless
the County Manager or designee may determine that it falls within
the same class as a listed use to the process outlined in LDC
Section 1.06.00, rules of interpretation.
MR. STUART: Yes.
HEARING EXAMINER STRAIN: I believe that is the
section that was followed for what brought us here today. So --
MR. LEWIS: Let me handle that.
HEARING EXAMINER STRAIN: And staffs OI is what is
part of the appeal that's being here today.
Doug?
MR. LEWIS: Yeah. Let me address that.
We vehemently reject that analysis. And I would say that the
zoning verification letter that staff opined that in that letter, they
described the business as most similar to that of a bar under the SIC
5813. And they said that the remaining uses could be
accommodated on a limited basis as being accessory to C4
permitted bar.
The zoning verification letter does not say that the remaining
uses can be accommodated under the BMUD-NC, so I want to
make sure that we start with the history first, and that's the zoning
verification letter back in 2015.
In that opinion it was tied to the C4 accessory. They did not
make an opinion there, a determination. A key reason why they
didn't make that opinion is that the only nonresidential use
permitted in the BMUD-NC is outdoor storage. That's the only
permitted accessory use, period. That's not debatable.
Exhibit B
Page 44 of 103
Under the maximum espresso unis est exclusion alterius,
which is Latin -- my kids take Latin at MCA. I don't speak Latin.
But, basically, what -- the legal principle is that when there are
more things of a class that are expressly mentioned, others of the
same class are, by inference, excluded.
And so in the zoning verification letter, the staff said, you can
do this, in essence, through the C4 as an accessory use, and they
understood that the only nonresidential accessory use under the
Bayshore mixed-use NC overlay permitted is outdoor storage.
The owner understood this before they purchased the
property, and they didn't appeal the zoning verification letter.
Further, in connection with our official interpretation request,
we didn't even ask the staff to opine specifically as required under
your interpretation section to make a determination under
2.03.07.i.b.ii.b, whether an accessory brewery falls under a similar
use category -- accessory use category like outdoor storage. I
don't even know how you could make that request, because the
only accessory use that's permitted there -- because we've already
said it's not a principal use, not a conditional use. We didn't
request that. And I don't want to be argumentative --
HEARING EXAMINER STRAIN: But I think you started
out by indicating, or maybe your planner did, that the underlying
zoning of C4 is still an option on the property, and this would be,
then, considered -- I think staff was trying to place this as an
accessory use to that original zoning underlying category of a
drinking place.
MR. LEWIS: The zoning verification letter made a
determination that you could -- which we think is ultra vires -- that
you could have an accessory -- again, very -- accessory, very
incidental, not substantial, to a bar under the C4.
They did not opine in 2015 that you could bring this in under
Exhibit B
Page 45 of 103
the overlay, and the reason for that, frankly, speaks volumes,
because the only permitted -- the only accessory use that's
available for a nonresidential development in that overlay is
outdoor storage.
HEARING EXAMINER STRAIN: But why would they
need to bring it in through the overlay if they can bring it in
through the underlying zoning?
MR. LEWIS: Well, we reject that position. I just was
addressing --
HEARING EXAMINER STRAIN: No. I am not taking a
position they're right or wrong. I'm simply asking the question.
If they can bring it in under the existing zoning, what would they
need to worry about bringing it in under Bayshore overlay for? It
would be irrelevant at that point.
MR. LEWIS: My comments that I just made to you was in
direct reaction to your statement that this was -- my understanding
of what you said was that this was -- this determination under
2.03.07.i.b.ii.b. So my comments were limited to that. As to
your question --
HEARING EXAMINER STRAIN: Okay.
MR. LEWIS: -- now, which is a different question, I would
say, look, I mean, staff is entitled to their opinion. We think that
that was an ultra vires determination. But I want to be clear that
that was a determination under the C4, not under the overlay.
HEARING EXAMINER STRAIN: Okay. Understood.
Mr. Stuart, how much time do you need to finish up?
MR. STUART: Five, eight minutes more; five to eight
minutes.
HEARING EXAMINER STRAIN: Okay. Let's limit it to
that, and then I'll have some remaining questions, and we'll finish
up after that.
Exhibit B
Page 46 of 103
MR. LEWIS: I just need to address that. I have
information that I need to put into the record to preserve my client's
case. So I would ask, as a matter of due process, that I'm afforded
the opportunity. I have some case law, some precedent,
interpretations the county's already set that's very relevant that I
need to get into the record.
HEARING EXAMINER STRAIN: Is it information
beyond what you've already provided --
MR. LEWIS: Yes.
HEARING EXAMINER STRAIN: -- in this hearing
binder?
MR. LEWIS: It's new information that I have not been able
to --
HEARING EXAMINER STRAIN: Is it going to be
provided in hard copy, or are you suggesting --
MR. LEWIS: I'm going to -- yes, I'm going to provide it to
you in hard copy and verbally.
HEARING EXAMINER STRAIN: Okay. Well, hard
copy. We'll see how much time's left for verbal.
Go ahead, sir.
MR. STUART: I'll try to be quick, Mr. Hearing Examiner.
Okay. Getting into the heart of the staff report. The staff,
when they say the BMUD, neighborhood community permits
manufacturing, wholesale, and storage, yes, it does, but
when -- again, when you look at the code, they're using C4, and
we've discussed that. So I just want to be clear, and I believe
counsel said that.
When you look at the staff statement that the manufacturing
uses that are listed are also C5 -- so it kind of justifies their
interpretation, but in this particular case a hierarchal zoning
interpretation is not applicable because the specific accessory uses
Exhibit B
Page 47 of 103
are identified both using the C4 and also using the Bayshore
mixed-use development. So it's not applicable.
And, basically, I have to point out that the reason why it's not
applicable is that when you have a Land Development Code, it has
to identify your accessory uses. It has to identify your conditional
uses. All those uses are identified for predictability and equal
protection.
The official interpretation appeal, the heart of our appeal also,
is that -- is that it's not -- the interpretation is not consistent with the
Comprehensive Plan. So even if you have the ability to interpret
and bring in a new conditional use or a new accessory use, it still
has to be consistent with the Comp Plan, and in this particular case
it's not.
Okay. The staff-- the BMUD neighborhood community
allows for a wide variety of uses, residential, commercial, and
relies on use groups and not SEC (sic) classifications. Heck, I've
covered that. I don't need to go into that.
Well -- and getting into -- okay. But let me finish up with
two points. Both -- the square footage. You know, it's
subordinate because it's smaller than the permitted use. You
know, again, it's the wrong metric. And, as an example, you
could have a resort hotel and spa, okay. The spa component is
also a permitted use along with the hotel. The spa footprint is far
smaller than a hotel footprint, but it's a permitted use.
So there's no real nexus between floor area and whether it is a
legally permitted accessory use and a permitted use. So, again,
that's why I was saying it's the wrong metric.
Another example, when you look at the traffic counts, again,
it's the wrong metric. Using orthopedic practice, there are
orthopedic practices that -- you know, they all -- most orthopedic
practices have a physical therapy capability. Some have now
Exhibit B
Page 48 of 103
opened up the physical therapy to -- a wellness spa to the public,
and so when you have -- when you evaluate traffic, well, you
know, the traffic still is far, far greater for the orthopedic use than
for the use that's open to the public.
And my point is, traffic, again, is not the accurate metric
because you can have -- you could have permitted -- legally
permitted uses by right, you know, with huge discrepancies in your
traffic counts, which we have in here.
And then when you look at -- finally, when you look at the
gross sales, it's very important. Again, the gross sales aren't a
metric. The application was thin. I have no idea, ultimately,
what, you know, production buying, what capacity, how much
expansion they're planning for, because if you look at the site plan,
there's areas stated for expansion. Plus, from my experience with
the Orange County Brewers, when I look at the site plan, they've
got plenty of space. I mean, we're doing 2,000 barrels plus in
almost a third of the space. So, again, it's hard to get my handle on
that.
But, again, a percentage of sales is always used for COP-type
uses, for state, you know, liquor licensing. But they're using a
state liquor license standard and criteria to try to separate what is a
legally permissible accessory use from the primary use. And,
again, it's just the wrong metric.
The big picture -- and I'll wrap up. The big picture is this: I
mean, everyone here, I'm sure, wants this microbrewery. They
want a local beer tavern. I can understand that. But the big
picture is that if you allow staff interpretation to stand,
then -- using an example, Glassworks. You have a really nice
Glassworks. Glassworks is an industrial manufacturing use.
They manufacture vases and trinkets and all kinds of really
nice -- glass babies, that type of thing, and they sell retail,
Exhibit B
Page 49 of 103
storefront.
But, over time, let's say, if they have the capacity, they dialed
into an Internet provider, Amazon or something, and then they
start wholesaling these glassworks to Amazon. So then what you
will have is a legitimate accessory use that ties into the retail
storefront, and then it morphs into a wholesale business, which is
not.
And so there's a big picture here. And I can go through -- I
mean, leather products. It's the same thing. So there's a
big-picture issue here that I wanted to emphasize. I'm running out
of time. So thank you.
HEARING EXAMINER STRAIN: And I understand your
emphasis, but I've got a question. You said all accessory uses
must be listed.
The storage, outdoor accessory uses listed in the Bayshore
may have been there -- and I'll get the Collier County zoning
manager or zoning director to opine on this eventually -- that may
have been there simply to acknowledge that that's now an allowed
use within that particular area, not that is the only accessory use to
all those other six allowed principal uses.
For example, we have taverns, and other places might serve
food. If food's not the primary use, it would be a secondary use.
The primary use would be the beer and tavern. It would be under
a 5 813 instead of 5 812 or vice versa.
We've had this happen in Collier County before; Stevie
Tomatoes was a prime example. It was an area up in North
Naples. They were operating as a restaurant, but they were
making -- I think -- we had to verify that they weren't becoming a
bar, and we used that metric to get there.
MR. STUART: My point -- and I'll conclude with this. The
interpretations to allow for uses not listed have to be consistent
Exhibit B
Page 50 of 103
with the Comp Plan. It's that simple. And in this particular case
it's not.
HEARING EXAMINER STRAIN: And in your opinion it's
not consistent. We'll hear more from county staff and others
today. Thank you.
Doug, how much time do you need to finish up?
MR. LEWIS: I want to first address your comment -- I think
it's important -- because I want to make sure you're aware of the
language. And I think it's a fair comment.
Under the interpretation of tables -- this is on the overlay -- it
says, blank sales -- sells, meaning there's no information indicated.
Use is not allowed in the corresponding subdistrict; however, such
use may be permitted in the underlying zoning designation.
So they understand that just because you don't list something
there, if it's a blank sell, for example, that the underlying zoning
may permit it, but it says, uses -- a use not listed is prohibited.
So that's really -- in answer to your question, the only
accessory use that's permitted in that -- in the overlay is the outdoor
storage.
Tab 22 -- just so we can be -- expedite our time. This is a
really important -- another example. He talked about Glassworks.
This is the example of the high capacity storage tanks. And I
would submit that, you know, when we start to, for a particular
person, provide special accommodations and when we disregard
the law, that gets problematic, and there's unintended
consequences.
One of the consequences -- there's a staff clarification that
was issued under SC 0605. This is a perfect analogy. So what
you had going on out in the Estates is you had people that were
getting these big high-capacity fuel tanks, and they were saying,
well, wait a minute here. You're bringing these 500-gallon tanks
Exhibit B
Page 51 of 103
that you're using to fuel your accessory use lawn business. And,
in addition, what you're doing is you're using some of those tanks
to take care of your home needs, which is understandable.
So the staff correctly drew the distinction between what's
accessory to the principal use, meaning this is -- the high-capacity
storage, this is an accessory. The 250 gallons is what they figured
was an amount, a quantity. So you could say 15 -- you know, a
thousand barrels is what they're going to consume on site.
That -- they can brew that if that's your determination; there's no
Comp Plan violation, and you can do it under the C4, if that's your
conclusion.
Then consistent with this you would say, okay, well, you
could do a thousand barrels produced that you're going to use for
retail purposes on premise, but the excess capacity that you're
providing is not accessory.
And so in this staff clarification they said, for purposes of the
classification, high capacity tank is defined as any tank --
THE COURT REPORTER: Can you slow down. Sorry.
MR. LEWIS: Yes -- in excess -- I apologize. I'm trying to
expedite the time to get my case on the record. But 250 gallons of
fuel. So that was a limit that was set by staff.
The staff then said, this amount should be sufficient to power
lawn tractors, lawnmowers, chainsaws and other motors used as an
incident -- again, it needs to be incidental and subordinate -- as an
incident to the single-family home. And, by the way, that's very
consistent with the Florida Supreme Court case that's in your
packet, the Third District cases that make a very clear line about
what is permitted -- what's an accessory use.
Consistent with that, staff correctly ruled in 2007 that this
percentage of the storage capacity is an incident to the
single-family; however, the fact that the code allows home
Exhibit B
Page 52 of 103
occupations employing heavy vehicles and equipment, others
accessory uses powered by gasoline/diesel does not justify the
storage of large amounts of fuel in support of the home occupation.
So, again, that's not incident to the permitted use.
I wanted to make sure -- because you'd asked the question
before. If you look at Tab 11, or Tab 14 as it relates to the
interpretation letter, I think it's really important as staff observed
that the proposed brewery use is most similar to a brewery
described under SIC Code 2082. Now, how do we get that
inference? If you look at Tab 14 --
HEARING EXAMINER STRAIN: Doug, you've got five
minutes to finish up, so one way or another, let's just finish.
MR. LEWIS: Okay, thank you.
It says -- it says, the allowance of a microbrewery, on site
brewing of beer. Again, they're tying that back up to the
statement above. It says, the industrial manufacturing of beer more
typically known as a brewery, SIC Code 2082. That's staff
determination, which I think is the correct determination that what
they're doing is an indust -- the SIC code for 2082 is industrial
manufacturing of beer. That's -- and that was not appealed by the
property owners.
So the allowance of this industrial manufacturing of beer
associated with the bar -- they use the term "drinking
establishment," just so we're clear. The language says "drinking
establishment," but I think what they said earlier was a drinking
establishment is tantamount to a bar, which is for retail on-site
consumption, is an accessory use that's directly related to the
principal use. And our clear testimony is the only way you can
get there is through the C4.
And the final thing I wanted to mention was that if you look at
the case law that's provided -- and there's an attorney opinion there
Exhibit B
Page 53 01103
as well -- there's several cases, but there's really a two-part test.
And this is the Turnberry case. This is Third District Court of
Appeal. This is where you had basically a place that was zoned
for residential. There was a hotel spa, swimming pools, and
whatnot, and they were seeking to have a medical group provide
services to not just the residents but the community at large. And
the Court said, to be accessory it must benefit the property
residents and -- and there's an "and" part -- not be available to the
general public at large. So it's got to be contained on the site, and
it's incident to, which is the clear law.
In fact, if you look at the -- another Third District Court case
says, if you want to look at Basset's work on zoning, he summaries
that many ordinances have elaborate statements regarding
accessory buildings, but they can usually be reduced to a
prohibition of business, and that's what we're talking about.
When you engage in a separate, distinct business of manufacturing
and distributing for off-site consumption, that is in no way incident
to a bar, in all fairness. And I think the courts understand that, and
so there's this two-part test. And the Court said, that's the law.
Now, in this case, in the Turnberry case, they said, well, it's
not even close here because, again, that's the law. The facts were
that most, if not all, serve the general public. That is what the law
said.
Now, the law -- it could have been 20 percent of the volume
or 10 percent, didn't matter, because you can't -- it cannot be
available -- the law says it cannot be available to the general
public.
That's consistent with the Florida Supreme Court case that my
partner cited in his opinion.
HEARING EXAMINER STRAIN: You have two minutes,
Doug, to finish up.
Exhibit B
Page 54 of 103
MR. LEWIS: Two minutes, all right.
Just quickly, the owners raised some other questions about
the project being delayed. You know, we filed our appeal. We
were trying to get this before the BCC back on September 12th.
We spoke to the owners back in May 2017. We asked them if
they'd agree to limit manufacturing of beer for retail on site,
consumption only, and they wouldn't agree to that. That's in the
tab. That's Tab 20.
There were concerns about the owner might abandon or
might walk away. Well, the zoning letter back in 2015 put them
on notice that a brewery is not permitted on the property as a
permitted use or as a conditional use, and manufacturing beer must
be incidental and subordinate to the retail sale of beer on the
premise. So they knew that.
So why did the owner buy the property? And why didn't the
owner look for an industrial-zoned site?
I understand the job issue. I get that. It's all good, but that
doesn't justify the problems that we're going to create by
undermining the Comp Plan, the Land Development Code, and
undermining specific precedent and zoning opinions on this issue.
Also, this is not the mixed-use project that we're encouraging.
I think that's clear. This is not the type of project that we're
looking for, and it's certainly permitted; I understand that.
If there's a desire to bring this use into the Bayshore
redevelopment overlay, then they should work, you know, to
amend the Comp Plan and address that, and there could be a larger
discussion, and the community can weigh in. We can have it go
through the front door and not provide special favors to a very
popular, you know, owner.
I will note, at the very end, just to be expeditious on time, I
did put in there a list of proposed conditions to the SIP approval,
Exhibit B
Page 55 of 103
and those are in your binder. And we've asked staff to look at
those, we've asked, you know, certainly for the applicant,
conditions to ensure that if you find that the Comp Plan allows as
an accessory to C4 this use, then we would say these conditions
would be designed to ensure that's what happens, and those
conditions are found in your binder -- under Tab 20 in your binder.
And we've also asked for certain modifications. That's the very
first page in Tab 20, or Page 1 through 3. Page 3 is the actual
specific proposals, and we've asked for certain modifications to the
interpretation letter. And that really concludes my presentation.
HEARING EXAMINER STRAIN: Thank you very much.
And with that, we're going to take a -- yes. Go ahead.
MS. ASHTON-CICKO: Mr. Chair, I do have two
comments to make that you need to be aware of
The Tab 23 that has the staff clarification, you need to be
aware that the Board of County Commissioners directed that in
order to be official, all staff clarifications had to be approved by the
Board. I can't tell you right now whether this is an official
interpretation. We can look into it and let you know; otherwise,
it's just an internal staff memo.
And then the second issue as to the conditions that were
presented yesterday to Mr. Bosi and Mr. Scott for consideration at
this hearing, because the property owner, who's the real party in
interest here, was not party to these discussions of the conditions, I
told staff that they should hold off, and those issues should be
addressed today at the hearing rather than out of the hearing
yesterday.
HEARING EXAMINER STRAIN: I'm assuming Mike -- I
did not see those. Mike, are you aware of what Heidi just
mentioned?
MR. BOSI: Yes, Mr. Strain.
Exhibit B
Page 56 of 103
HEARING EXAMINER STRAIN: Okay. You'll be up
next, and you'll be able to at least address those.
MR. LEWIS: And thank you for that, Heidi. I appreciate
that. If I might as well, I can provide a supplement, as well, to you
as you evaluate the merits. I can provide a supplement as well, if
that's okay, on the 0605 interpretation.
HEARING EXAMINER STRAIN: I can't accept anything
after today's hearing in regards to the decision.
MR. LEWIS: Okay. That's fine. And I would just, again,
object on the record --
HEARING EXAMINER STRAIN: I will be able to weigh
that accordingly.
MR. LEWIS: Because there's information coming in after
the hearing that I'm not able to address, so I just would -- as a due
process matter --
HEARING EXAMINER STRAIN: I won't be able to accept
anything after this hearing today.
MR. LEWIS: Okay. I'll just object on the record. I
appreciate that. Thank you.
HEARING EXAMINER STRAIN: Okay. With that, we
are going to take a break till five minutes of 11, and we'll come
back at that time. About 15 minutes.
(A brief recess was had.)
HEARING EXAMINER STRAIN: Okay. If everybody
will please take your seats, we'd like to resume the meeting.
Ladies and gentlemen, if you'll please come in and sit down and
stop talking.
Thank you.
With that, we'll resume the meeting. We left off with the
presentation by the appellant and some questions that I had. We
are going into the presentation by county staff. The appellant did
Exhibit B
Page 57 of 103
have one expert witness testify today. I'll open the -- let the
county staff know that they're able to cross-examine that
county -- that particular expert witness before you're done with
your presentation.
Mike?
MR. BOSI: Thank you, Mr. Strain. Mike Bosi, Planning
and Zoning director.
Before I get into the specifics of my case, I did want to
provide to the court reporter a number of emails that I have
received post the distribution of the packets to the Hearing
Examiner -- these have been provided --just to complete the
record.
HEARING EXAMINER STRAIN: Thank you. Do you
have copies for others here, or just the one for the court reporter?
That's -- if that's all you've got, we'll make that work.
MR. BOSI: I have one other set of copies of the individual
emails.
First, let me -- again, Mike Bosi, Planning and Zoning
director. I've been in that capacity for five years for the county.
Fifteen years total as either a principal planner or community
planning manager, comprehensive planning manager, or the
overall planning and zoning director.
I received a masters degree from Georgia Tech University in
the mid '90s, worked within the communication industry for four
years before I began my career with Collier County. So close to
20 years of experience within the field of planning; am a certified
planner by the American Institute of Certified Planners as well,
just to proffer my experience within the field of planning.
And, also, from a procedural standpoint, I wanted to clarify,
per the Land Development Code, Section 106.019, the County
Manager or designee shall have the authority to make all
Exhibit B
Page 58 of 103
interpretations of the text of this LDC, the boundaries of the zoning
districts on the official zoning atlas, and to make all interpretations
of the text of the GMP and the boundaries of the land-use districts
and the Future Land Use Map, and I would be that designee as the
Planning and Zoning director, just for clarification purposes.
HEARING EXAMINER STRAIN: Thank you.
MR. BOSI: Today's hearing is based upon two appeals that
were submitted. One to an approved Site Improvement Plan, and
the second was to an official interpretation.
The first appeal is the SIP appeal, and there's two primary
questions that were the basis of that appeal, and they're
highlighted. First, that the industrial manufacturing of beer and
related uses within the site work as described on Exhibit A cover
letter as filed by the property owner within the Site Improvement
Plan application is not a permitted use of the property and that
industrial manufacturing of beer is not a principal, accessory, or
conditional use that can occur on the property as expressed by the
appellant.
Second, within the appeal of the OI is that within the
Bayshore Mixed-Use Triangle Redevelopment Overlay, they do
not include industrial manufacturing of beer or any other type of
industrial uses whatsoever as their first claim and, second, that
industrial manufacturing of beer, more typically known as a
brewery, is an industrial use that is not permitted on the property
and is not permitted as a principal, conditional, or accessory use.
Those are the questions that are being asked of this appeal
hearing. What I heard today, which was surprising -- it was
proffered by their expert witness -- was that the Bayshore
mixed-use district overlay within our zoning code was inconsistent
with our Growth Management Plan.
Now, I don't -- as I was listening to that, I went through the
Exhibit B
Page 59 of 103
appeal for the SIP and the application for the 01 appeal, and never
was it ever suggested that there was an inconsistency between the
adopted Land Development Code overlay and the Growth
Management Plan.
So in terms of those questions, I'm not going to address. I'm
going to assume that our adopted Land Development Code is
consistent with the Growth Management Plan, and my focus will
be upon the questions of whether a restaurant with an accessory
microbrewery is a use that's allowed for within the -- within the C4
zoning district or the Bayshore mixed-use neighborhood
commercial overlay district.
HEARING EXAMINER STRAIN: Now, Mike, I didn't
interrupt the previous speaker at his request during his
presentation. Would you prefer I ask questions as you move
along or I hold my questions until you finish your presentation?
MR. BOSI: You could ask questions at any time, Mr. Strain.
HEARING EXAMINER STRAIN: Okay. Was the
Bayshore overlay reviewed and approved by staff, both
comprehensive and zoning, was it reviewed and approved by the
Planning Commission, and it was reviewed and approved by the
Board of County Commissioners?
MR. BOSI: At the time of adoption, it was, yes.
HEARING EXAMINER STRAIN: And with the uses that
we've seen today under previous submittals -- we talked six out of
nine uses in the manufacturing wholesale section -- were all those
part of that approval process?
MR. BOSI: Yes, it was, Mr. Strain.
HEARING EXAMINER STRAIN: Thank you.
MS. ASHTON-CICKO: Mr. Chair, for clarification --
HEARING EXAMINER STRAIN: Yes.
MS. ASHTON-CICKO: -- of the record, so that we have a
Exhibit B
Page 60 of 103
record of this, the land planning agency and the Board of County
Commissioners are required to make a consistency determination
with the Growth Management Plan at the time that they adopt the
Land Development Code regulations.
HEARING EXAMINER STRAIN: And that's my purpose
of getting Mike to at least confirm that was done and the process
was followed. Thank you.
MR. BOSI: The next overhead exhibit that I have is directly
from that Land Development Code and the Bayshore Mixed Use
Overlay District. The Bayshore Mixed Use Overlay District sits
within 2.03.07, which is the overlay zoning district of our Land
Development Code. 2.03.07.I.3.b specifically states that property
owners within the Bayshore mixed-use district may establish uses,
densities, and intensities in accordance with the LDC regulations
of the underlying zoning classification or may elect to
develop -- redevelopment under the provisions of the applicable
Bayshore mixed-use district subdistrict. And in this subdistrict, we
deal with the Bayshore neighborhood commercial.
The second section that I have, 2.03.07.I.4.b indicates
that -- the uses that are allowed for within the Bayshore mixed-use
district overlay. The first is a, is residential, the second is lodging,
the third is office, the fourth is retail and restaurant, the fifth is
entertainment, the sixth is manufacturing, the seventh is civic and
institutional, and the eighth is infrastructure.
Those are relevant because those are the range of land uses
that are provided by the Bayshore mixed-use district. And if I was
to characterize the proceedings and the guidance that staff utilized
to make their determination it would be two words: Scale and
focus. Because I think scale is relevant to the operations that are
provided for within the beer garden and accessory microbrewery,
and focus. And I say "focus" because if you look at the
Exhibit B
Page 61 of 103
applications for both the OI and the SIP, there's a focus upon the
C4 zoning district.
And staff, in staff review of the uses that are permitted, feels
that that focus is misguided, that the focus should be on the
Bayshore mixed-use district neighborhood commercial overlay..
And why do I say that? Further within the Bayshore Mixed
Use Overlay District, within the table that describes the uses that
are contained within any one of the neighborhood districts -- and
the focus of our attention would be on the mixed-use side,
highlighted, the neighborhood commercial. That's the second to
the last of the allowance.
And it goes through. And the first page it lists your typical
dwelling units, single-family duplex, row houses, multifamily as
permitted uses, and then we go to the second category which was
lodging. Within there, hotels and motels are permitted uses.
Conditional uses would be bed and breakfast. Then the third
grouping would be your office and service, and there's a wide
range: Banks, credit institution, government services, medical
services, personal care, post office, professional office service. It
continues on and allows for rental services, studio, veterinarians,
video rental, and then goes onto the next category which is retail
and restaurants.
I think the second listing within there, your bars, tavern, and
nightclub is squarely the permitted use that is the primary use of
this property. And it goes through another listing of retail and
square footage limitations within your general retail and how that
works.
The next group is your entertainment: Galleries, museums,
meeting facilities, cultural community facilities, theaters,
recreation facilities, amusement indoor, community garden.
And then it goes to the next grouping, and that's your
Exhibit B
Page 62 of 103
manufacturing: Metal products and fabrication is one of the
permitted uses; laboratories; laundries; metal -- warehouses; repair
shops; storage outdoor; and the one I found most interesting was
research and development. And why do I find that interesting?
Is one of the things that you'll notice, that there's no SIC codes that
are associated with these groupings. They're open. They are a
large umbrella of activities.
So if I was to try to make a determination of a use underneath
one of these umbrellas, how would I go about determining that as
the administrator of the Land Development Code? Collier
County's Land Development Code traditionally uses the SIC code
approach to designate what land uses would be provided for.
This a little bit more flexible. It's a redevelopment area. It's
a mixed-use redevelopment area, and I believe that flexibility was
specifically intended within these groupings.
So what I did is I went to the SIC code website, and it's SIC
code -- SlCcode.com. And, basically, the first search that I
performed was research, and it had a list of SIC codes for various
kind of land uses that would be provided for underneath that
permitted -- permitted land use of research and development.
And one said space research and technology. And then you
went down, and it's aircraft engines and engine parts. It's guided
missile and space vehicles. So I was satisfied with that.
So then I went to research -- or I went to development. So
within the development SIC location lookup, metal mining
surfaces was one of the ones I thought as rather intense from a
land-use perspective. Again, the guided missile systems, the
space vehicle parts, your wholesale trade, air and water research,
and solid waste management. And I thought those were pertinent;
those were pertinent to the type of land uses that were allowed by
this individual zoning district.
Exhibit B
Page 63 of 103
So, finally, I said, the umbrella category that we were looking
at is research and development. Why not -- why not input
research and development within the SIC directory search? I put
that in, and if you can see at the very top, that's the second page of
25. I have 23 pages of individual land uses that were provided
within that search.
What I found as extremely interesting, that if you look
underneath the SIC code lookup for research and development, on
Page 24 of 25, 2082, malt beverages. That's a brewery. 5181,
beer and ale. That is packaging of beer and ale manufacturing.
So based upon a traditional premise towards how an applicant
could make a presentation or the case for a use that could be
provided for, this approach could find both the manufacturing of
beer as well as the restaurants being provided as permitted uses
within that individual zoning category.
HEARING EXAMINER STRAIN: Mike, in regards to that
issue, that under the research category this pops up as those SIC
codes that could apply, you've already opined through the OI that's
in discussion here today that 2082 would not apply.
MR. BOSI: Right.
HEARING EXAMINER STRAIN: How do you
differentiate then between those issues that theoretically would
apply by the broadness umbrella format of the language in the
Bayshore versus the more specified application that's more, let's
say, practical for that neighborhood; how did you do that?
MR. BOSI: As I stated, I said there were two words that
were really guiding our determination, and the first was focus, and
that's about where the zoning focus was, whether it was C4 or the
Bayshore mixed-use district, and then the second was scale, and it
is scale. And it's the scale of the operations in subordination to the
primary use of the property that allowed me to make that
Exhibit B
Page 64 of 103
determination that a use category that could be argued could be
permitted, could be accommodated within an accessory capacity to
a principal use that has a direct relationship to that principal use.
And that was how that determination was arrived upon.
HEARING EXAMINER STRAIN: Thank you.
MR. BOSI: And I know within the expert testimony there
was a discounting of some of the factors that staff utilized to make
that determination of insubordination -- or subordination, I'm
sorry, and they discounted trips, they discounted square footage,
and they discounted sales as inappropriate ways to gauge that
relationship, even though from a planning standpoint, we would
traditionally utilize those as some of the primary means to gain an
understanding of intensity and a relationship between activities.
And if you look at the trip generations report that was
supplied for the SIP, 47 total p.m. trips were generated by this
facility; three of them were allocated to the light industrial activity
for the manufacturing of beer. That's 6 percent. That's 6 percent
of the trips generated by this facility would be associated with that
manufacturing activity, which is a permitted use group within the
Bayshore mixed-use neighborhood commercial subdistrict.
HEARING EXAMINER STRAIN: Well, how -- if this is
the limitations and the research technology analysis you previously
put up indicated 2082, and I now know you don't approve of that
because of the OI, but how far could this go before it reached a
threshold, either the TIS or the use, before it reaches a threshold
that would be prohibited, that would be broaching that 2082? Is
there a trigger that you see, or is it just something that would be
based on --
MR. BOSI: Well, 2082 is an establishment that primarily
operates as a brewery. This facility primarily operates as a beer
garden.
Exhibit B
Page 65 of 103
HEARING EXAMINER STRAIN: Is the accessory use
considered then a -- it's not considered a primary use?
MR. BOSI: It's not considered a primary use.
HEARING EXAMINER STRAIN: Okay. Thank you.
MR. BOSI: The second aspect of the determination that's
subordination was related to the square footage limitations. And
just remember, outdoor storage is one of those facilities or one of
the accessory uses that could be provided for. This proposed
architectural renderings will show you -- shows the front end of the
individual -- of the proposed brewery.
Remember, this replaced that Small Engine World, and that
Small Engine World is allowed by code to store engines,
equipment, whatever they need outside of their facility, and it's
deemed appropriate by this individual -- by the individual overlay.
The proposed use in regards to its impact, its visual impact
upon the surrounding property owners in my regard, from my
professional planning opinion, is a great improvement to the visual
quality and the overall impression that the area will be provided
with this.
And towards the end of the architectural renderings, it has a
allocation of where the -- and it's over to this side is where the front
end of where the Bayshore or the front facing the road system is,
where the public gathering aspect would be, and the back area here
is where the brew operations are provided for. That's
another -- that was another factor utilized to establish that
subordinate relationship. And then, ultimately, we suggested that
a sales limitation be placed as 49 to 51 percent to ensure that that
subordinate relationship can be maintained. So three individual
factors that we arrived -- that we utilized to try to justify and
establish what that subordinate relationship will be.
HEARING EXAMINER STRAIN: Mike, in establishing
Exhibit B
Page 66 of 103
that subordinate relationship, at the time that you were writing the
OI, did you anticipate either off-site activity with the remaining 49
percent or wholesale activity?
MR. BOSI: There was -- when I wrote the 01, the official
interpretation, there wasn't a direct contemplation of the off-site,
but in constructing the staff report for the appeal, I recognized that
microbreweries can have off-site activity, and based upon
limitations of what that could be, I was comfortable in providing
for that limitation that only 49 percent of sales could be related to
off site.
HEARING EXAMINER STRAIN: So with that limitation,
do you feel comfortable that the activities on that site could never
broach the threshold of being an industrial operation under the
2082 section of the code or SIC?
MR. BOSI: If those -- if those relationships are maintained,
I believe that it never becomes an establishment that is primarily
engaged in the production of malt beverages.
HEARING EXAMINER STRAIN: Thank you.
MR. BOSI: And, finally, this is from our Growth
Management Plan. This is the Bayshore Mixed-Use Triangle
Redevelopment Overlay.
There's two areas where it talks about intent, and intent
matters, especially when you're dealing with the Growth
Management Plan and the Growth Management Plan subdistrict.
I'll read you the first of the intent. The intent of the
redevelopment program is to encourage the revitalization of the
Bayshore/Gateway Triangle redevelopment area by providing
incentives that will encourage the private sector to invest in the
urban area, and the second intent statement is, intent of this overlay
is to allow for more intense development in an urban area where
urban services are available.
Exhibit B
Page 67 of 103
And I believe that the intent of the overlay is met with the
specific application of the SIP and the determinations that have
been provided for within the OI. And with that, I'm happy to
respond to any questions you may have.
HEARING EXAMINER STRAIN: Okay. I do have a few
that I didn't ask already.
There's issues of capacity that are involved in the accessory
use. The TIS was submitted. You put that on the screen earlier.
How was the TIS determined to be a limitation, and how strong of
a limitation is the TIS in regards to how does it get changed? How
could they expand with that TIS on record?
MR. BOSI: Well, they would have to change the -- if they
were to change the configuration of the interior space, they would
have to submit for a building permit, and that building permit
would be reviewed by our site -- or development review staff, and
at that period in time they would be able to make a determination
as to whether the square footages have changed within the
proposed beer garden and accessory microbrewery. And within
the SIP, I believe there was conditions placed that that subordinate
relationship has to be maintained.
HEARING EXAMINER STRAIN: Right. But as far as the
TIS goes, once a TIS is submitted as a document for staff to make a
decision on when they issue such a -- like an SIP, is that TIS locked
into those standards or those thresholds that are placed on that TIS,
or is it a flexible document?
MR. BOSI: The trips associated with it are locked into
what's being committed to for that -- at that submittal.
HEARING EXAMINER STRAIN: Okay. Did you ever
get into a discussion about the amount of production that the
facilities approved in the SIP could produce as far as either barrels
or kegs or however that -- I think it's barrels is what they generally
Exhibit B
Page 68 of 103
go by.
MR. BOSI: No.
HEARING EXAMINER STRAIN: Okay. If barrels were
introduced as a threshold, do you see an issue with -- do you see
that as an assist to make sure that we don't go beyond a threshold
that would produce more than what you would anticipate at that
location?
MR. BOSI: I would agree with the appellant that that is most
certainly a rational nexus to be able to control that subordinate
relationship.
HEARING EXAMINER STRAIN: When you did the OI,
the questions you specifically answered related to industrial uses,
and I believe in the OI's language the accessory part of it was still
considered industrial, but it wasn't to the threshold of the 2082.
But wouldn't it be more of a -- would you consider it more of a
commercial use in relationship to the drinking establishment rather
than an industrial use that, according to the SIC manual 2082, it's
titled establishments primarily engaged in manufacturing of malt
beverages.
An accessory use, by your definition, can't be the primary
element. So if it can't be, how would they ever meet that
threshold?
MR. BOSI: Maybe I didn't follow the question. I don't think
they could.
HEARING EXAMINER STRAIN: Well, that's exactly
what I was -- that's what I was expecting. I just wanted to make
sure I was thinking correctly. If they're primarily a beer
production operation, then they would fall under 2082, but as long
as they're accessory to another one and they haven't reached those
thresholds that you've reviewed the OI by or the thresholds that can
be placed on their operation, they may never get to that primary
Exhibit B
Page 69 of 103
production.
MR. BOSI: Correct.
HEARING EXAMINER STRAIN: You do agree that 2082
is not allowed in the overlay, right, based on your OI?
MR. BOSI: Yes.
HEARING EXAMINER STRAIN: Why does the -- and I
think you've said this, but I just want to make sure. The overlay
does not use SIC codes, and that was intentional?
MR. BOSI: I was not involved with the individual adoption
of that overlay. I can only make that assumption that it was
because of the flexibility that it does provide for within the
determination of the range of uses.
HEARING EXAMINER STRAIN: The use of sales figures
to establish the accessory versus primary use, have we used that
before in Collier County?
MR. BOSI: We have used it before. I can -- I will have to
do a little research to give you the specific cases where it's been
utilized to establish those thresholds.
HEARING EXAMINER STRAIN: But it has been used
before?
MR. BOSI: Yes.
HEARING EXAMINER STRAIN: How does the scale of
the microbrewery drinking place we have here limit its external
influence? For example, we know a 2082, an Anheuser-Busch or
one of those big manufacturers, has a different external impact
than a production as limited as this facility may be, and I was just
trying to figure out from the perspective of the applicant, or the
appellant, what the issue is externally, because what's done inside
isn't really going to necessarily affect everybody outside.
We look for compatibility standards to assure that it doesn't.
And I haven't seen yet where they're going to have external impact
Exhibit B
Page 70 of 103
that's any greater than uses that I find allowed in C4 such as -- well,
we know what ancillary plants are. They're bus stations that
the -- that's allowed there. They're like the school bus depots.
The auto and home supply stores; auto vehicle and equipment
dealers; eating and drinking establishments, which is what this is;
food stores; here is one, gasoline service stations with services and
repairs are allowed in C4. So we could actually see a Racetrac,
potentially, go there as a use that's allowed; hardware stores.
Hardware stores have a lot of deliveries coming and going with
lumber and other things; hospitals.
I saw those elements and I thought, well, these seem to have a
greater external impact, and they're allowed in the C4. And I was
just trying to understand why this particular use may have such an
impact that -- it's more disturbing than that particular -- those uses I
just gave as example, because there's 142 uses in C4.
MR. BOSI: And I'll go back to the very premise of what my
focus has been: Focus and scale. It's scale. If you have a
facility that's under 3,000 square feet, there's only a limitation to
the amount of product that could be provided. And we talk about
distribution, and we talk about distribution in a way that is
referenced or alluded to as an activity that's unusual for a drinking
establishment or a bar.
But to provide for my education, I was a bartender for six
years, so I know how -- I know how our product is brought in. It's
brought in on dollies, and it's brought in through beer delivery
trucks. Now, a beer delivery truck comes and drops its product
off. A beer delivery truck can stop and pick the keg up. And the
same external effect is provided for on the surrounding property
owners.
So the term "distribution" and the way that it's alluded to in
terms of a disrupter is only when the frequency is of a magnitude
Exhibit B
Page 71 of 103
that creates overburdened pressure upon the external transportation
system. And this TIS indicated that that industrial production
capacity was going to yield three trips or 6 percent of the peak hour
demand upon our transportation system. So scale is very relevant
to this application.
HEARING EXAMINER STRAIN: Okay. Mike, let me
make sure I've got all the questions I need answered before I go
further. Yes, I do.
Okay. Mr. Lewis, since you did the first presentation, do
you have any questions of Mike?
MR. LEWIS: Mike, you mentioned that -- you mentioned
that the production of beer is an inappropriate -- it's not a permitted
use within the C4, is that your testimony, or the Bayshore mixed
use as a permitted use, neighborhood commercial?
MR. BOSI: In the C4 or the Bayshore mixed-use
neighborhood commercial, a malt beverage production 2082 is not
a permitted use.
MR. LEWIS: Okay. Is the use, the manufacturing -- it's
your understanding that they're manufacturing beer, correct?
MR. BOSI: Manufacturing, producing, creating, yes.
MR. LEWIS: Okay. So they're engaging in manufacturing
of beer. And is it your opinion that that is not a -- we're talking
now about permitted uses. First of all, let's just make it easy. Is
that a conditional use that's appropriate in the C4, underlying C4,
or the overlay?
MR. BOSI: No.
MR. LEWIS: Okay. Is that a permitted use that's available
in the C4 or the overlay?
MR. BOSI: No.
MR. LEWIS: Okay. So it's your opinion that it's an
accessory use in the overlay; is that correct?
Exhibit B
Page 72 of 103
MR. BOSI: Correct.
MR. LEWIS: Okay. All right. And that's consistent with
your opinion in the zoning verification letter, correct?
MR. BOSI: Correct. The zoning verification letter is
not -- was not authored by me, nor is that what I'm providing
testimony to. I'm providing testimony to the appeal, the staff
report within the appeal to the SIP, and the staff report within the
OI appeal.
MR. LEWIS: But your interpretation does reference the
zoning letter, correct?
MR. BOSI: It references the zoning letter, correct.
MR. LEWIS: Okay. Is it your intention to undermine the
zoning letter?
MR. BOSI: No.
MR. LEWIS: Okay. So in the zoning letter you concluded
that the uses in the outlined -- I think there was eight different
sub-uses in there. One of them was an accessory microbrewery,
right? Those eight uses which they identified, is it your
understanding that the SIP that they've submitted, is that still what
they're looking for, those types of uses in the SIP?
MR. BOSI: As I testified, yes.
MR. LEWIS: Okay, great.
So in regards to that, in that letter it was said that staff has
determined that those uses described are similar to that of a bar or a
lounge, and they identified SIC Code 5813, correct?
MR. BOSI: Correct.
MR. LEWIS: Okay. So it your testimony that what they're
doing is really essentially a bar or a lounge and with these
accessory uses, which the letter said, staffs of the opinion that
these uses could be accommodated on a limited basis as being
accessory to a bar?
Exhibit B
Page 73 of 103
MR. BOSI: As I testified, there was three individual
categories that we went through to determine and ensure that there
was a subordinate relationship between the production of beer and
the primary operation of a bar or tavern.
MR. LEWIS: Right. But I'm just trying to confirm,
because an accessory is always tied to a principal. So your
analysis in 2015 and your analysis in the interpretation was that
the --
MS. ASHTON-CICKO: Well, I think he's already testified
that he did not do the analysis in 2015, and he's merely referencing
the background in the staff report as to how you got to where you
are. So if you want to ask him any questions related to how he feels
about it today --
MR. LEWIS: Let me make sure we're on the same page,
because I think you and I are going different directions.
In reference to the eight uses that they identified that you and
I have been discussing that they asked for, and you've said, as I
understand it, that those uses are the uses that are embodied in the
SIP, staff did an analysis that they're describing a bar, and you
identified -- the primary use that you identified was SIC Code
5813; is that correct?
MR. BOSI: Correct.
MR. LEWIS: Okay. And that was an analysis that staff
did. Staff also said -- and I'm going to read from the letter. It
says, zoning services staff is of the opinion that the remaining
limited uses could be -- or listed uses, I'm sorry -- could be
accommodated on a limited basis as being accessory to a bar,
correct? So that was the calculation or the analysis that staff did;
is that correct?
MR. BOSI: There was no analysis. Staff said that those
uses could be accessory uses to the primary use.
Exhibit B
Page 74 of 103
MR. LEWIS: Okay. Well, the conclusion, however you
want to describe it. But the opinion or determination of staff was
that the remaining uses could be accommodated on a limited basis
as being accessory to a bar; is that correct?
MR. BOSI: Correct.
MR. LEWIS: Okay. Are you familiar with staff
clarifications? Do you get involved in those? Did you look at
any staff clarifications when you wrote any of your -- did any of
your analysis?
MR. BOSI: Did not consult any, no.
MR. LEWIS: You didn't review any?
MR. BOSI: No.
MR. LEWIS: Okay. So were you aware when you were
doing your analysis of staff clarification as it relates to what is an
accessory use in Collier County in the application of SC0605?
Did you look at that, or anybody you're aware of look at that?
MR. BOSI: No.
HEARING EXAMINER STRAIN: And, Doug, that's a
repetitive statement. He's already commented he didn't use any
staff clarifications. So we need to move this along, and
redundancy isn't necessary, so...
MR. LEWIS: Okay. I apologize. I was just trying to get
the record right. I just want to make sure that we're clear.
MS. ASHTON-CICKO: Was he provided a copy of the
package that shows the staff clarification you're referring to?
MR. LEWIS: It's in the binder today, and I've read it.
MS. ASHTON-CICKO: Well, I don't know that he looked
through the binder.
MR. LEWIS: Well, to address that, let me lay the
foundation.
MS. ASHTON-CICKO: Well, he already answered he
Exhibit B
Page 75 of 103
didn't use any staff clarifications.
MR. LEWIS: Well, you've raised -- with all due respect, you
have raised an objection to his testimony --
MS. ASHTON-CICKO: I'm not raising an objection.
HEARING EXAMINER STRAIN: No. She's just trying
to state a fact. He hasn't had time to review that packet that you
supplied to all of us, and neither did I, and so --
MR. LEWIS: Well, I view that as an objection.
HEARING EXAMINER STRAIN: -- any questions related
to that --
MR. LEWIS: Is that not an objection?
MS. ASHTON-CICKO: Well, I'm assisting the Hearing
Examiner in the conducting of the meeting, which he's asked me to
do.
MR. LEWIS: Okay. So going back to my question, have
you looked at, today, staff clarification 0605?
MR. BOSI: No.
MR. LEWIS: Okay. Do you ever look at staff
clarifications when you're making zoning determinations?
MR. BOSI: Yes.
MR. LEWIS: Okay. Why didn't you look at any applicable
staff clarifications in relation to this application? What was the
reason, if that's your normal course of conduct?
MS. ASHTON-CICKO: Well, we already established that
we didn't know whether or not the staff clarification was approved
by the Board, so it wasn't any official opinion.
MR. LEWIS: Well, it's listed on your website, and it's there,
and it's numbered. So, you know, it's there, and you've said you
reviewed those, is the testimony.
So is there a reason why you --
MS. ASHTON-CICKO: He said he did not review it.
Exhibit B
Page 76 of 103
HEARING EXAMINER STRAIN: Yeah, that's --
MR. LEWIS: No. My question is, is there a reason why
you didn't review it here, given your practice of looking at those?
MR. BOSI: Relevancy.
MR. LEWIS: Okay. Thank you.
Did you look at the TIS in reviewing this, the TIS, the Traffic
Impact Study?
MR. BOSI: The TIS was attached as one of the staff report
or staff report exhibits, so yes, I did.
MR. LEWIS: Okay. And did the TIS take into account the
scale, the scope, the capacity, and the intensity of the beer that's
being produced on the property or manufactured?
MR. BOSI: Yes, they had accounted for square footage
allocated to the light industrial manufacturing beer.
MR. LEWIS: Okay. Were there any other factors other
than square footage they looked at?
MR. BOSI: That I'm not aware of.
MR. LEWIS: Okay. Do you know what traffic calculation
they tied this to in terms of a use calculation in the TIS?
MR. BOSI: Land-use Code 110, light industrial.
MR. LEWIS: Okay. Thank you.
Do you recall in the Site Improvement Plan -- did you review
that? Are you aware of the --
MR. BOSI: I did not review the Site Development Plan.
MR. LEWIS: You did not. Okay.
MS.. ASHTON-CICKO: You might want to let them know
that that's a separate department that's not under you, if you want to
explain that.
MR. LEWIS: Were you only providing testimony today as it
relates to the official interpretation, or were you providing
testimony as it relates to the Site Development Plan?
Exhibit B
Page 77 of 103
MR. BOSI: I'm providing testimony as it relates to the Site
Improvement Plan approval and the 01. The question was, did I
do analysis on the Site Improvement Plan, and I assume you were
saying for determination of approval. I did not review that.
MR. LEWIS: Did you receive the Site Improvement Plan?
MR. BOSI: I reviewed an approved Site Improvement Plan.
MR. LEWIS: Okay. So you did review it after it was
approved?
MR. BOSI: Yes.
MR. LEWIS: All right. So in part of that review, did you
look at the parking calculations for the Site Improvement Plan?
MR. BOSI: As I've indicated and put on the overhead, the
Traffic Impact Statement that's been provided for was part of my
testimony.
HEARING EXAMINER STRAIN: What relevance do the
parking calculations have to do with the --
MR. LEWIS: I'm getting to that.
HEARING EXAMINER STRAIN: -- appeal that you've --
MR. LEWIS: I'm getting to that.
HEARING EXAMINER STRAIN: -- the basis of your --
MR. LEWIS: Well, staff-- in answer to your question.
HEARING EXAMINER STRAIN: Well, let's hear --
MR. LEWIS: Let me answer your question, then I'll -- staff
has indicated that a factor to look at is the scale, and as part of their
staff report, they said that the scale of this is limited to a footprint.
So the relevancy is -- and I'm going to get to the question. Are
you aware -- or let me -- do you know what the square footage that
was attributed to the brewery, the industrial manufacturing of beer,
what that square footage was attributed to on the Site Improvement
Plan?
MR. BOSI: Relating to parking calculations?
Exhibit B
Page 78 of 103
MR. LEWIS: Yes, sir.
MR. BOSI: No.
MR. LEWIS: All right. Would you disagree with 3,000
square feet?
MS. ASHTON-CICKO: Well, I think he -- when you
submitted your appeal, you asked two questions that were zoning
related, and that's why it was assigned to Mike to answer the
questions, and now you're asking specific questions relating to the
Site Improvement Plan approval that was done by another person.
MR. LEWIS: So you're not providing any testimony today
on the appeal of the Site Improvement Plan? These are separate
appeals?
MS. ASHTON-CICKO: No. He's reviewing the appeal of
the Site Improvement Plan, but you've asked a couple questions
related to that appeal.
MR. LEWIS: And they're related to the appeal of the Site
Improvement Plan, because we were forced to have both items
combined today. So I'm trying to figure out who do I ask --
MS. ASHTON-CICKO: But the questions -- you asked two
questions: That the industrial manufacturing of the beer and
related uses with site work as described in Exhibit A cover letter
attached hereto is filed by the property owner with the Site
Improvement Plan is not a permitted use of a property and the
industrial manufacturing of beer is not a principal, accessory, or
conditional use that can occur on the property. And now you're
asking other questions related to the review of the Site
Improvement Plan, so...
MR. LEWIS: So in answer to your question -- I'm not
sure -- in answer to your question, we filed two separate appeals.
MS. ASHTON-CICKO: Yes. And I'm reading the
questions.
Exhibit B
Page 79 of 103
MR. LEWIS: You are reading from one of the appeals.
Our second appeal appealed the approval of the Site Improvement
Plan. As I understand it --
MS. ASHTON-CICKO: I'm reviewing from the Site
Improvement Plan, and we can put your letter on the overhead if
that's of assistance.
HEARING EXAMINER STRAIN: Mike is responding to
the county's position on both of the appeals.
(Multiple speakers speaking.)
HEARING EXAMINER STRAIN: There is nobody else
you're going to hear from the county today. And wait till I finish
before you start talking. There won't be anybody else from the
county speaking today except for Mike.
MR. LEWIS: Okay.
HEARING EXAMINER STRAIN: So that's the extent of
where your focus needs to be is on the answers that he can respond
to based on the reviews he did to get here today.
MR. LEWIS: I think we're asking, again, the relevancy of a
line of questioning. The relevancy is tied to our statement that the
Site Improvement Plan improperly permits the industrial
manufacturing of beer as a, quote-unquote, accessory use to the
bar.
Part of staffs analysis in refuting that in their staff summary,
as I read it -- we're talking now about the Site Improvement
Plan -- is a question of scale. And, Mike, in his -- I presume it
was -- am I correct you worked on the staff report? You put that
together?
MR. BOSI: Correct.
MR. LEWIS: You touched on the issue of scale. So I think
it's very relevant, very germane. When you're -- first of all, I don't
think scale, frankly, is the legal test under Florida law, but it's the
Exhibit B
Page 80 of 103
test that you've put in your report. That being said, I think it's a
fair question to ask you, when you assert a number, a percentage
attributable to the footprint for the bar versus the manufacturing
operation, that number, per the Site Improvement Plan, is 3,000
square feet as it relates to the parking calculation. That's the
reason for the question. So does that concern you?
MR. BOSI: The Site Improvement Plan indicated 2,500
some-odd square footage. So that's what I based the analysis of
subordination.
MS. ASHTON-CICKO: If you didn't look at the parking as
part of your analysis, you can say that.
MR. BOSI: I did not review the parking as part of the
analysis.
MR. LEWIS: Okay. Okay. Finally, the appeal narrative
that was filed -- did you have a chance to review the appeal
narrative?
MR. BOSI: Yes.
MR. LEWIS: Okay. And the appeal narrative -- and if you
can look at Page 3 of the appeal narrative -- what was the basis
stated in that appeal narrative on Page 3?
MS. ASHTON-CICKO: Are we in the SIP?
MR. LEWIS: So we're at --
MR. BOSI: I believe it was the OI.
MS. ASHTON-CICKO: The OI, okay.
MR. LEWIS: Yeah.
MR. BOSI: So which paragraph would you like me to read?
MR. LEWIS: You can look at Page 3.
MR. BOSI: The pages weren't numbered, but I can assume
that the third one is 3.
MR. LEWIS: There was a narrative. What was the -- what
was the basis for the appeal as you saw that as related to the -- as
Exhibit B
Page 81 of 103
you read this appeal based -- was the basis for the appeal? Was it
tied to a Comp Plan objection, or was it tied to a land-use
objection?
MR. BOSI: The property has a Collier County, Florida,
land-use map element designation of urban mixed-use district,
urban coastal fringe subdistrict, and it's further located in the
Bayshore/Gateway Triangle Redevelopment Overlay. Allowable
uses within the urban mixed-use district, urban coastal fringe
subdistrict designation of the Future Land Use Map in the
Bayshore/Gateway Triangle Redevelopment Overlay do not
include industrial manufacturing of beer or any other types of
industrial use whatsoever.
Further, in the urban designation of the FLUM, industrial
uses are only permitted in the urban industrial district and in the
urban commercial district, certain quadrants of interchange
activity centers.
MR. LEWIS: Okay. So in the appeal we squarely
addressed the appeal centered on the Comp Plan. In the staff
report, did you address the -- did you respond or address this
analysis in your staff report as it relates to the incompatibility with
the Comp Plan?
MR. BOSI: No.
MR. LEWIS: Okay. And why did you not address that in
your staff report?
MR. BOSI: The focus of the staff report was upon the
zoning, because the application was submitted regarding the
zoning of the property and the approval against the permitted uses
within the property. The statement of the inconsistency was not
articulated in a way in which I felt was necessary to address.
MR. LEWIS: So when the statement was made in the
narrative, in fact, the urban designation of the future land use, in
Exhibit B
Page 82 of 103
that designation, industrial uses are only permitted in the urban
industrial district and in the urban commercial district, certain
quadrants of the activity centers, you didn't feel that that was
important to address?
MR. BOSI: I didn't -- I did not verify whether that was a
correct statement.
MR. LEWIS: Okay. Does it -- do you typically look at,
when there's a challenge, as to whether or not there's consistency
with the Comp Plan?
MR. BOSI: When the question is that -- is there consistency
issues with the Comp Plan with the uses that are provided for
within an overlay district.
MR. LEWIS: Right, but --
MR. BOSI: If you wanted to ask me, was the Bayshore
Mixed Use Overlay Zoning District consistent with the Comp Plan
in its allocation of industrial uses, I would think that question
would be asked of me.
MR. LEWIS: Okay. Well, the question is that the -- the
appeal was based on the approval of the Site Improvement Plan
and the issuance of the official interpretation, and the basis for the
appeal was there's an incongruency with the Comp Plan. So my
question is -- well, I think we already asked the questions, so that's
all I have. Thank you.
HEARING EXAMINER STRAIN: Thank you.
Mr. Brooker, I know that you have an opportunity to ask
Mike questions, but we'll do that as you finish up your
presentation, and -- no, not right now. I wanted to make sure
there's -- I had one more question of Mike.
Mike, the question was asked of you about the accessory use
being still industrial and, basically, your response, it's allowed as
an accessory use due to the scale, but not necessarily does it mean
Exhibit B
Page 83 of 103
it's a 2082 application; is that a fair interpretation of where your
thoughts are on that? Because isn't the accessory use
as -- considered industrial based on the fact that it's scaled to a
limitation that it won't exceed basically a commercial operation?
MR. BOSI: It's based upon -- 2082 is an establishment
primarily engaged in the production of malt beverages, and this is
an activity that's subordinate to the principal use of a bar and a
tavern. And that's the position the county has established and the
county is trying to defend.
HEARING EXAMINER STRAIN: Okay. And your
position that the accessory use is allowed to function as that
industrial component is because the accessory use has
very -- several limitations or does have limitations?
MR. BOSI: It has several limitations and that manufacturing
and industrial activity is a use group that's provided for within the
Bayshore Mixed-Use Neighborhood Commercial District.
HEARING EXAMINER STRAIN: Okay. Thank you,
Mike.
I think you may have already addressed this, but I'd just like it
again for clarification. Have you testified that the use of an
accessory brewery/microbrewery in the BMUD is consistent with
the Growth Management Plan?
MR. BOSI: Yes.
HEARING EXAMINER STRAIN: Okay. Thank you.
That's all the questions I have, Mike. Thank you very much for
your time. If you'll stick around, of course, until the hearing's
over today.
With that, we will move into our next presentation. Mr.
Brooker.
MR. LEWIS: I just need to note for the -- for our due
process rights that I do lodge an objection to that opinion as it's
Exhibit B
Page 84 of 103
beyond the scope of the hearing and the appeal with the questions
asked in the official interpretation.
HEARING EXAMINER STRAIN: And it's not beyond the
scope of a response; thank you.
MR. LEWIS: Thank you.
HEARING EXAMINER STRAIN: At some point, and I'll
leave this up to you, Clay, we need to be taking a lunch break,
mostly for those people in here that are hungry. I can either ask
that we start that now and come back in one hour, or you get your
presentation interrupted after about 15 minutes. What would you
prefer? We could even go to -- we could spend the -- depending
on the court reporter, maybe we could spend the hour. Okay.
Well, then we won't -- well, we'll take the hour before we break for
lunch then. So you're good to go.
MR. BROOKER: Okay. I think I'm going to be less than
15 minutes.
HEARING EXAMINER STRAIN: I figure you would be,
but I wanted to make sure I didn't -- I didn't perceive -- I didn't
make some presumption that may not be right.
MR. BROOKER: I appreciate it.
For the record, Mr. Strain, my name is Clay Brooker. I am
with the law firm of Cheffy Passidomo. I'm a land-use attorney
there; 821 Fifth Avenue South. I represent ANK Crafts, LLC,
which is the owner of the property that's being challenged, for lack
of a better description, today.
As the property owner, we are directly and immediately
affected by the outcome of this proceeding and, under Florida law,
that confers party status upon us, so I do appreciate the
acknowledgment that we are a party to this proceeding and
appreciate the opportunity to be heard.
I would also like to incorporate all of Mr. Bosi's comments
Exhibit B
Page 85 of 103
into my presentation. We agree with him wholeheartedly. With
the exception that I'd like to clarify: We are not going to be
producing guided missiles or space vehicles on the property.
A couple housekeeping matters. This hearing has turned a
lot more legal than I'm used to with respect to these quasi-judicial
hearings.
HEARING EXAMINER STRAIN: Mine, too. So I have
to agree with you.
MR. BROOKER: I would like just a standing objection to
everything that has been presented at this last moment without
having advance notice of being able to see it and prepare for it,
specifically Tab 22 to the appellant's notebook, I believe, includes
the CV of Mr. Stephen Thompson, an attorney, which, correct me
if I'm wrong, Mr. Lewis, but was proffered as an expert. I know
Mr. Thompson very well as an attorney, but I believe the proffer
was that he is an expert on Florida law, and I believe Florida law
does not permit expert testimony on what Florida law says. So I
object specifically to a proffer of Mr. Thompson as an expert on
Florida law.
There was also some discussion with respect to Tab 10 of the
notebook. That was the cover letter, if you recall, to the SIP
submittal in which there was a characterization of the -- as the use
being industrial manufacturing of beer. Mr. Lewis neglected to
inform you that that cover letter was corrected, revised
subsequently. That was a scrivener's error, and I'd like to present
the corrected letter that was, in fact, submitted to the county as part
of the record.
HEARING EXAMINER STRAIN: That's fine. If you've
got additional copies, then you could put one on the overhead if
you want to show it to everybody involved.
MR. BROOKER: I'm not so sure I really need to show it,
Exhibit B
Page 86 of 103
Mr. Strain. There in the second paragraph of the letter it refers to
a lounge with microbrewery instead of a characterization as
industrial manufacturing of beer.
HEARING EXAMINER STRAIN: Thank you. We're
fine, John. Thanks.
MR. BROOKER: So I'm going to try to be brief, and I
apologize in advance if there's some duplication. We've been
talking about SIC codes, and you're going to hear them again from
me and, again, apologize. But I will no doubt be more brief than
either of the former two presentations.
The fundamental issue here today is whether a
microbrewery -- this is a microbrewery -- is an allowed use on the
subject property, and virtually every relevant claim and argument
we've heard is based upon and depends upon the claim that the
microbrewery proposed is classified under SIC Code 2082. That
code, SIC Code 2082, reads as follows: Establishments primarily
engaged in manufacturing malt beverages.
This SIC applies to massive breweries, Anheuser-Busch, that
produce millions of kegs of beer a year. Painfully, obviously, that
is not what's being proposed today. We are a one-acre parcel.
We have approximately a 6,000-square-foot structure. It is
physically impossible to produce millions of kegs per year on this
property.
So from that basis alone, I believe there's doubt whether this
property itself could ever be considered to properly be classified
under SIC Code 2082.
So if SIC Code 2082 is not the appropriate classification, then
where do we fall? Well, you have SIC Code 5813. 5813 is
entitled drinking, paren, alcoholic beverages, and it states, quote,
establishments primarily engaged in the retail sale of alcoholic
drinks such as beer and so forth. Again, the word "primarily"
Exhibit B
Page 87 of 103
expressly stated in both of those SIC codes.
And some of the examples under SIC Code 5813 are as
follows, and this is straight from the SIC code itself: Beer
gardens, beer parlors, beer taverns. I suggest to you that what's
being proposed is precisely that.
Now, let's look at the express provisions of the Bayshore
Mixed Use Overlay Neighborhood Commercial Zoning District.
And, for record purposes, that's Section 2.03.07.I.4.
Neighborhood commercial subdistrict states that the
purpose/intent of the subdistrict is to encourage a mix of low
intensity commercial and residential uses. The subdistrict
provides for an increased presence and integration of the cultural
arts and related support uses, including galleries, artists, studios,
and live/work units.
My understanding is that the county always intended that
language to -- its vision was that this was supposed to be the artsy,
more eclectic corridor where people make things, and this is
precisely what's being done here. We're selling beer that we make
for on-site consumption, primarily.
So if you go further into the overlay zoning district language
and you get to the table of uses that we've already seen, Mr. Bosi
actually put it up on the screen, there's residential uses, there's
lodging uses, there's commercial uses, and those uses include bars,
taverns, and nightclubs and several manufacturing uses which, Mr.
Strain, you've gone through already this morning. And one
example of that is metal products fabrication. That is a use, by a
way, permitted in only one traditional zoning district in Collier
County: The industrial zoning district. So that demonstrates the
wide array of commercial uses that's permitted within the
Bayshore Mixed Use Overlay Neighborhood Commercial District.
And while a microbrewery, that term, that specific term, is
Exhibit B
Page 88 of 103
not expressly listed as a permitted use -- and, by the way, the term
"microbrewery" does not appear anywhere in our Land
Development Code. It does not appear anywhere in the SIC code.
So what we're dealing with, to be frankly honest, is a bit of a
hybrid.
The code does allow other uses, quote, within the same class
if approved through the OI process. And that, within the same
class, is a quotation from -- and I'm sorry to roll your eyes with this
long citation, but for the record 2.03.07.I.4.b.ii.b. Ironically, Mr.
Lewis did our work for us. An official interpretation was
submitted as to whether this was an allowed use, the official
interpretation was rendered, and I believe it is well within your
discretion, Mr. Strain, to determine today that the use that's being
proposed is within the same class as part of your findings as the
other permitted uses expressly listed in the district.
So, finally -- I told you this was going to be short. Finally, to
conclusively demonstrate that the proposed microbrewery is an
establishment primarily engaged in the retail sale of beer, we're
willing to offer these stipulations today:
At least 51 percent of all revenues of this business will come
from sales of beer for on-site consumption.
No more than 49 percent of the space or square footage of this
establishment will be devoted to the manufacturing side of beer.
We will be licensed under Florida's beverage law, specifically
Section 561.221(3), as a vendor and manufacturer, and that
licensing classification by the state requires us to, A, sell beer for
on-site consumption and that our production is limited to less than
10,000 kegs per year. We will easily satisfy both of those
conditions.
We agree to limit off-site shipments -- remember, we are not a
distributor. Distributors must come to us, load up, and ship off
Exhibit B
Page 89 of 103
site -- to no more than three shipments per week.
And, to the extent necessary, we stipulate to the accuracy and
the binding nature of the professional opinions regarding traffic
impacts contained in the TIS in your packet.
So, in conclusion, then I would respectfully request that we
exercise common sense, reason, and we stop pretending that
something -- that whatever's being proposed isn't. We're not
proposing a brewery. We're proposing a microbrewery. And we
happen to be caught in the twilight zone because no one really has
caught on to microbrewery, that term, and inserted it in our code.
Notwithstanding that, I believe this use falls -- and I believe Mr.
Bosi's opinions confirm that, fall squarely within the permitted
uses and accessory uses that are permitted by the Comprehensive
Plan for this location.
Therefore, we respectfully request that the appeals be denied
and that the OI and the SIP approval be affirmed.
HEARING EXAMINER STRAIN: Okay. I have a few
questions, Clay.
When you said you agree to the 51 percent, you agree to it as
stated in the recommendation from staff; is that true?
MR. BROOKER: Correct.
HEARING EXAMINER STRAIN: Okay. And I
understand about your space will not exceed, for production, 49
percent of the 6,000-square-foot facility; is that true? You're
not -- I mean, 49 percent of any facility, or the 6,000 square feet
that's there today.
MR. BROOKER: Whatever the actual number is, because --
HEARING EXAMINER STRAIN: Of the facility that's
there today. You're not going to -- here's what I don't want you to
suggest, that you're going to do 49 percent, but then you're going to
triple the size of the building.
Exhibit B
Page 90 of 103
MR. BROOKER: If we triple the size of the building, you
know we have to come back, and then all of a sudden Mr. Bosi is
looking at us in terms of scope and scale again.
HEARING EXAMINER STRAIN: Okay. Maximum of
three shipments per week. Coming in or going out? I mean, that's
not deliveries for bulk material. That's outgoing sales?
MR. BROOKER: Correct.
HEARING EXAMINER STRAIN: Okay. Then that
brings me back to 561.221. Let me read the section to you. You
tell me where I'm misreading it. Under 3A of that section, not
withstanding other provisions of the beverage law, any vendor
licensed in the state may be licensed as a manufacturer of malt
beverage upon a finding by the division that: One, the vendor will
be engaged in brewing malt beverages at a single location in an
amount which will not exceed 10,000 kegs per year. For purposes
of this subsection, the term "keg" means 15.5 gallons. But
number two is the one that's confusing me. The malt beverages so
brewed will be sold to consumers for consumption on the vendor's
licensed premises or on contiguous licensed premises owned by
the vendor. So you're not going off site.
MR. BROOKER: Yes, we are. We're going to go off site.
That is a licensing statute. The Florida beverage law licenses
breweries according to the size of them.
HEARING EXAMINER STRAIN: Right. This is the
brew pub section.
MR. BROOKER: A manufacturer -- manufacturer that
manufactures -- I understand. Let me try to explain.
HEARING EXAMINER STRAIN: Okay.
MR. BROOKER: So the record is clear, we are, primarily
for marketing purposes, going to ship off site. So when you go to
the restaurant around town you see a tap that says Ankrolab
Exhibit B
Page 91 of 103
Brewing Co., and that's advertising. But the primary purpose is
for on-site consumption on this property.
But going back to the statute, manufacturers -- and
Anheuser-Busch cannot be a vendor under Florida's beverage law
unless you are minimally producing the amount of beer, which is
the 10,000 kegs per year.
So while that doesn't -- while that statute doesn't conclusively
determine our right about whether we are going to ship off site, that
is, in fact, a license that we are pulling and that is appropriate for
this facility.
HEARING EXAMINER STRAIN: Okay. When you
started referencing 561.221, you specifically referenced Section 3.
MR. BROOKER: Correct.
HEARING EXAMINER STRAIN: And that's the piece
that -- 3.a.2 is the piece I was having a problem with versus what
I've heard throughout today versus that statement that the
consumption will be on the vendor's licensed premises or on
contiguous licensed premises owned by the vendor, the vendor
being ANK Labs or Ankrolab, or whatever.
MR. BROOKER: Ankrolab, yes.
HEARING EXAMINER STRAIN: Okay. So then this
doesn't restrict them to selling just on the facility in question today
in Bayshore, but they could then somehow sell to other facilities
even with the statement that it will be on the vendor's licensed
premises or contiguous licensed premises owned by the vendor?
Because any stipulation would tie to this.
MR. BROOKER: Right. And I don't know how the state
enforces that, but what I'm telling you is that is the license that we
are going to be pulling for the purpose of demonstrating today's
purposes of the scope.
HEARING EXAMINER STRAIN: Okay. That's what I
Exhibit B
Page 92 of 103
wanted to clear up. I understand.
And then the TIS cap, which you've heard testimony, you're
bound by it anyway. So you've agree to adhere to that cap as far
as trip counts go?
MR. BROOKER: Correct.
HEARING EXAMINER STRAIN: Okay. I don't have any
questions, Clay, after that.
MR. BROOKER: Thank you.
HEARING EXAMINER STRAIN: Thank you.
MR. BROOKER: And, for the record, I have no questions
of the prior --
HEARING EXAMINER STRAIN: I was going to ask
you -- or Mike Bosi?
MR. BROOKER: Sony?
HEARING EXAMINER STRAIN: You have no questions
of either Mike Bosi or Mr. Stuart?
MR. BROOKER: No, sir.
HEARING EXAMINER STRAIN: And that takes us to the
end of the presentations that were scheduled for this matter.
THE COURT REPORTER: I don't need lunch.
HEARING EXAMINER STRAIN: You don't need lunch?
Who here needs lunch?
(No response.)
HEARING EXAMINER STRAIN: Good, because I don't
either and neither does the court reporter, and she's the one that we
mostly have to worry about.
So without her fingers moving as fast as they do to their
utmost capacity, it becomes a problem.
And with that, we will move into the discussions or any
members of staff that would -- I mean the public that have
comments. Earlier I asked for all those wishing to speak today to
Exhibit B
Page 93 of 103
stand to be sworn in.
So the first I'm going to ask is when your name is called, if
you haven't been sworn in, acknowledge that so the court reporter
can swear you in.
Mr. Bosi has the -- yeah, applications for speakers and, Mike,
if you'll start reading the first one off, and that particular podium
there is where you need to go.
MR. BOSI: Sure, Mr. Strain. The first speaker is Michael
Sherman, and following Mr. Sherman will be Ian Bartoszek.
MR. SHERMAN: Good day. My name is Mike Sherman.
I'm a member of the CRA advisory board, but today I'm speaking
as a small businessman who is building homes in the Bayshore arts
district.
I just wanted to say that this is a relatively silly process to
watch unfold, because this is exactly the kind of thing that, for the
last 17 years, the CRA and the community around it have been
trying to achieve, and I just wanted to stand up and say that.
I guess I can't imagine what the motivation is behind this
situation. Why would this landlord who lives -- who has property
across the street be willing to go to this trouble to stop an
improvement to his neighborhood which will benefit that building?
It's beyond me. So that's all I have to say.
HEARING EXAMINER STRAIN: Thank you, sir.
Next speaker?
MR. BOSI: Ian Bartoszek followed by --
HEARING EXAMINER STRAIN: You'll need to spell
your last name, please.
MR. BARTOSZEK: Sure. Ian Bartoszek,
B-a-r-t-o-s-z-e-k.
HEARING EXAMINER STRAIN: Thank you.
MR. BARTOSZEK: I've already been sworn in.
Exhibit B
Page 94 of 103
First, I just would like to say that I trust the interpretation of
staff as I've heard it through this process today but, more
importantly, I'd like to put a face of one of the hopeful end-users to
this fine establishment that I hear -- and we've been waiting for for
a long time.
I'm a wildlife biologist at a not-for-profit environmental
organization here in town. That does have some bearing, because
at a microbrew establishment in two days I'm having a fundraiser
for my research project. So these establishments are very
beneficial to the community.
I've benefited the previous year and have had support for my
research project, removing large invasive snakes from Collier
County. These breweries supported my cause, and I know of
other microbreweries in town that have supported other
conservation causes in town for other institutions, and I would
assume and expect that when this fine establishment comes up and
running, that it would do just that, probably in support of other
initiatives as well.
So I've been patient for this one. We have three fine
microbreweries in the county. This Ankrolab would anchor the
microbrewery establishment in the southern part of the county.
And we've been waiting patiently. And I'm very thirsty.
Thank you very much.
HEARING EXAMINER STRAIN: Thank you.
Next speaker, please.
MR. BOSI: The next speaker is Maurice Gutierrez.
MR. GUTIERREZ: Good afternoon. My name is Maurice
Gutierrez. I am currently the chair of the Bayshore CRA.
You know, the CRA is tasked with being innovative, being
creative, and undoing what our community has been designated as
a CRA. You know, CRA is not a blue ribbon award, so we're
Exhibit B
Page 95 of 103
constantly being challenged but, at the same time, we are up to the
challenge to bring new businesses to the area.
For the last two years, the CRA has been in total commitment,
all the board members; we've had numerous letters to the
commissioner backing this project.
And it was very interesting that Mr. Bosi made the point of
scale and focus. I'm not a land professional, although I'm a
businessman, but I could tell you walking down the street and
looking at that building, this is not Inbev. This is not
Anheuser-Busch. They're not applying for a five-story building
to manufacture mass productions of beer. This is for the
neighborhood. It represents the diversity we've been looking for.
Unfortunately, situations like this have unintended
consequences. Not that we're worried about them shipping beer
out of there, but we're worried about what the public sees going on
here, what other investors can look forward to when they try to
redevelop in our area and the potential two-year battle over
verbatim and interpretations of compatibility.
It was mentioned walkability is one of our focuses. And,
wouldn't you know it, we've got a bike lane right in front of this
location. What more needs to be done to understand that a
micro -- I think that's a small word -- brewery is a small operation,
and a CRA is a micro community. We've been designated, not
again because of our attributes, but because of the mistakes that
have been made in the past.
So when the CRA looks at a potential project and
recommends it, it isn't because we've got nothing better to do or
we've got a lot of money to spend on attorneys; it's because we
think it's a good fit. All the hearings we've had, public at the CRA
office monthly, have dealt with this, and we have never heard one
negative comment from the owners and the business owners in our
Exhibit B
Page 96 of 103
district which this will impact directly.
I can walk to it. I can ride my bike to it. Does that count in.
the traffic count? I don't know. I'm not a professional. But I
can tell you by looking at this location, it is not going to be a mass
production.
Now, there were concerns that were presented, and it just
makes me think, if a shoelace manufacturer would want to come
into our neighborhood, would he be looking at comments saying
no because, you know, you can strangle people with shoelaces, so
those are weapons of mass destruction?
You know, the reality is, common sense has a place. It
breeds in CRA, districts because we've been ignored where
common sense was ignored in the past, and I'm mostly hoping that
this focus will change for other developers who will risk their
money, who will come here and challenge for two years with a
vision without walking away and saying, you know, I think I'll go
to another location that's not being redeveloped because it's easier
to build in a non-redevelopment area.
I congratulate the Ankrolab people for having patience. I
don't know how financially well that works out for them, but if
you're in the neighborhood, I do believe you will be successful.
And for the community and the CRA, we have always backed this,
and we have not changed our perspective and will continue to do
so, and hopefully this will be a place we can all discuss the past
over a cold beer.
Thank you.
HEARING EXAMINER STRAIN: Thank you.
(Applause.)
HEARING EXAMINER STRAIN: Ladies and gentlemen,
please. I've got to ask that you refrain from response to speakers.
It's not the -- it's not the thing we're supposed to be doing.
Exhibit B
Page 97 of 103
Go ahead, Mike.
MR. BOSI: The last submitted public speaker form is for
Eileen Arsenault.
UNIDENTIFIED SPEAKER: She left.
HEARING EXAMINER STRAIN: Are there any public
speakers who have not registered and not spoken who would like
to speak? Ma'am, if you'd come up and identify yourself.
(The speaker was duly sworn and indicated in the
affirmative.)
MS. SILVA: I do. My name is Mena Silva. I am with
Naples Beach and Bay Realty.
HEARING EXAMINER STRAIN: Spell your last name.
MS. SILVA: Sure. S as in Sam, i-1, V as in Victor, a.
HEARING EXAMINER STRAIN: Thank you.
MS. SILVA: So as I said, I'm a realtor, Naples Beach and
Bay Realty. We are a small neighborhood brokerage in the
Bayshore area.
I kind of represent what's kind of trending in that area. I'm a
younger person. I'm a conscientious consumer, so that means that
I work in the neighborhood that I love, I support local businesses,
and I spend my money there.
And we're kind of seeing a trend with that also in real estate.
We're having a lot of younger people. I help out a lot of first-time
homebuyers as well as investors. And one of the major selling
points that we have that people absolutely love is Amanda
Jerome's building, which is the marine, the microbrewery, our
hotel that's coming up, the Gardenia, as well as the food truck park.
So when people come to me -- and it just happened yesterday.
I had a couple from Sarasota. They came, they wanted waterfront,
but they said they wanted to stay somewhere close so they can
walk to the microbrewery.
Exhibit B
Page 98 of 103
So this business is something that the neighborhood
absolutely needs if we're going to want to invite the type of people
that we want in our neighborhood, people that appreciate, support
local businesses, local art, and the walking neighborhood
community.
HEARING EXAMINER STRAIN: Thank you, ma'am.
Anybody else?
(No response.)
HEARING EXAMINER STRAIN: Okay. Thank you.
And with that, we'll move on to the balance of our meeting
today, which will require -- which will allow for a 10-minute
rebuttal by the applicant if he so chooses. Mr. Lewis?
MR. LEWIS: Staff want to go?
HEARING EXAMINER STRAIN: I'm sorry?
MR. LEWIS: Your notice that you circulated on Monday
stated that staff would go first with their 10-minute rebuttal.
HEARING EXAMINER STRAIN: I'm -- Mike, did you
have anything you want to rebut?
MR. BOSI: No, Mr. Strain.
HEARING EXAMINER STRAIN: Then that goes back to
you. I didn't think he would, and --
MR. BROOKER: And I waive rebuttal as well.
HEARING EXAMINER STRAIN: Okay. So we're back
to you.
MR. LEWIS: Great. Thank you. I appreciate it.
HEARING EXAMINER STRAIN: Ten minutes for your
rebuttal and summation. Thank you.
MR. LEWIS: A couple housecleaning items.
First, the staff clarification, SC0605 is posted on the county
website under staff clarification, and the official interpretation
conflicts with both this and case law, as we noted.
Exhibit B
Page 99 of 103
That has -- there's really been -- the only evidence that's been
presented as it relates to the status of law as to what is an accessory
use has been provided in our appeal.
We provided case law in your binder. I've discussed the case
law, the Florida Supreme Court case. I'll be getting into that here
just briefly in the rebuttal. We've provided an affidavit from a real
estate lawyer who is certified or is opining in the testimony that
he's an expert in real estate law, and we're proffering him as such.
And, yes, under Florida law you can proffer a real estate law expert
to provide testimony, competent, substantial testimony in a
quasi-judicial hearing, so that's why it was done. But that is really
the only testimony, so I'm going to come back to that in a minute.
My original OI request was tied to industrial manufacturing
of beer. That's right there in the request. The applicant said that
they're not conducting this use and they presumably -- I didn't hear
them discuss this on the record, I didn't hear them object, but
because of that, I think silence is an objection, but I think they
would agree that -- and I think their arguments lended to that
because they were talking about scale, and they're saying, well,
we're a microbrewery. We're not this.
So I think it's clear that they're acknowledging that a
industrial manufacturing of beer use on the property is not
permitted as a permitted accessory or conditional use right. That
was the reason for the OI.
I've objected to any opinions or determinations that have been
given by the planning -- by the zoning officials or anyone else that
relate to something other than what we asked for, and that was
industrial manufacturing of beer.
So in that regard I think it's very clear and that -- for other
reasons that I identified earlier, that there has been no
determination under the overlay as to whether or not -- by the
Exhibit B
Page 100 of 103
zoning official as to whether or not anything other than the listed
Table 1 uses for accessory use, conditional use, or permitted uses
can occur. There has been no other determination. There's been a
determination as it relates to industrial manufacturing, which we're
being told today this site is not that.
Let me just kind of summarize this principle. Assuming we
move forward and let's say you determine that the Comp Plan
permits -- and whether you classify what they're doing as
commercial or industrial. But if it's your conclusion that the
Comp Plan permits whether it's in C4 or in the overlay, what
they're deeming a microbrewery as an accessory use -- again, the
staff has said it can't be a permitted use, it can't be a conditional
use. The only thing we're left with is an accessory use.
So assuming that we're saying it can be an accessory use, then
I think the -- what you're left with is the very clear legal principle
that we've articulated that's really been unrebutted, and it's a very
clear principle under Florida law, and that is essentially that in
order to be -- and it's consistent with the opinion that staff has
rendered. If you're going to do that, it's got to be incident to the
permitted principal use. I think we've heard testimony the
permitted principal use here is a bar, a bar that is primarily for retail
consumption of alcohol on premise.
So I want to just -- as I close, I wanted to read you a couple of
legal principles that really have been unchallenged today, and that
is, really, what is the extent of an accessory use? And I think that,
you know, if the residents say, well, yeah, we want to have a beer
garden, fine, have a beer garden if you determine -- and have a
microbrewery if that's what you determine, if it's compatible with
Comp Plan.
But that does not allow you to convert an accessory use under
Florida law, which is subordinate and incident to the primary use.
Exhibit B
Page 101 of 103
In other words, you can't engage in -- and they've testified. I
mean, we heard their very clear admission that they're going to
apply for a license that allows them to distribute off site and that
they're going to be distributing and wholesaling this stuff all over
the county.
Now, you've tried to ameliorate that and you've said, well,
there's a 51/49. That's not the law.
The Florida Supreme Court, which I've cited, has said very
clearly that when you do that, you transform accessories into
principals, and that's the International Company versus City of
Miami Beach case I've cited. That's a problem. And I think your
staff understood that when, you know, residents were trying to
bring these 500-gallon tanks in and say, well, you know, it's an
accessory. It's incidental to the residential uses. No, it's not.
Five hundred gallons -- you need 250 gallons.
So when you get to a 500-gallon limit -- so when you're
brewing, you know, 10,000 or 5,000, or whatever that number is,
kegs a year, that's clearly -- and they've admitted it's not going to be
used on premise.
So there's other cases, the Miami Beach Uchitel case, which
is in there, and I think that the Basset analysis, which the Third
District adopted, said, essentially, that many ordinances that
elaborate statements regarding accessory buildings and uses, they
can usually be reduced to a prohibition of business. And it's clear
that they're engaging in other business enterprises. And that's the
problem.
I think it's been undenied, your planning director said, well,
we're not saying that -- in our interpretation or the appeal in any
sense we're saying that under the overlay or the C4 that you can be
a permitted use. We're not saying it can be a conditional use.
We're saying it's an accessory use. Well, the law then says, okay,
Exhibit B
Page 102 of 103
well, if it's going to be accessory, it needs to be subordinate and
incident to the principal use. And I think that's the issue here.
We've really got the tail wagging the dog. We've got the
brewery -- and, by the way, you know, I know he mentioned they
changed the letter in April, but the appeals were already filed, so it
was kind of self-serving. They didn't change the plan. But either
way, you really have the brewery kind of wagging, you know, the
tail, and I think that's the problem is that, you know, we have
codes; we have provisions. They mean something.
And there are significant dominoes that will happen well
beyond that, I can just tell you now. I mean, if this precedent's set, I
will tell you it's going to create a caveat business for a lot of local
land-use lawyers who are going to say, Collier County has blown
wide open the accessory use. What is an accessory use? And
that's what this does. And I understand. I'm sympathetic. But
they were clearly aware of that back in 2015. If they had competent
counsel, they would have been advised in 2015 it's only an incident
or subordinate to the on-site consumption of alcohol.
So with that, I would like to end my presentation and let the
record speak for itself.
Thank you.
HEARING EXAMINER STRAIN: Thank you. That does
take us to the end of today's hearing. I do want to thank
everybody that participated. You've given me a lot to consider
and think about, and I appreciate that.
There is no other business on today's agenda and -- are there
any further public comments?
(No response.)
HEARING EXAMINER STRAIN: Hearing none, this
meeting's adjourned. Thank you.
*******
Exhibit B
Page 103 of 103
There being no further business for the good
of the County, the meeting was adjourned by order of the
Hearing Examiner at 12:23 p.m.
COLLIER COUNTY HEARING EXAMINER
MARK STRAIN, HEARING E ;AMINER
ATTEST
DWIGHT E. BROCK, CLERK
These minutes approved by the Hearing Examiner
on , as presented
or as corrected
TRANSCRIPT PREPARED ON BEHALF OF
U.S. LEGAL SUPPORT, INC., BY TERRI
LEWIS, COURT REPORTER AND NOTARY
PUBLIC.
Exhibit C - Page 1 of 22
2.03.03-Commercial Zoning Districts
A. Commercial Professional and General Office District(C-1),The purpose and intent of the commercial professional and general office district C-1 is
to allow a concentration of office type buildings and land uses that are most compatible with,and located near,residential areas.Most C-1
commercial,professional,and general office districts are contiguous to,or when within a PUD,will be placed In close proximity to residential areas,
and,therefore,serve as a transitional zoning district between residential areas and higher Intensity commercial zoning districts.The types of office
uses permitted are those that do not have high traffic volumes throughout the day,which extend Into the evening hours.They will have morning
and evening short-term peak conditions.The market support for these office uses should be those with a localized basis of market support as
opposed to office functions requiring inter-jurisdictional and regional market support.Because office functions have significant employment
characteristics,which are compounded when aggregations occur,certain personal service uses shall be permitted,to provide a convenience to
office-based employment.Such convenience commercial uses shall be made an integral part of an office building as opposed to the singular use of
a building.Housing may also be a component of this district as provided for through conditional use approval.
1. The following uses,as identified with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for
within this section are permissible by right,or as accessory or conditional uses within the C-1 commercial professional and general
office district.
a. Permitted uses.
1. Accounting(8721).
2. Adjustment and collection services(7322).
3. Advertising agencies(7311).
4. Architectural services(8712).
5. Auditing(8721).
6. Automobile parking lots(7521)only.
7. Barber shops(7241,except for barber schools).
8. Beauty shops(7231,except for beauty schools).
9. Bookkeeping services(8721).
10. Business consulting services(8748).
11. Business credit institutions(6153-6159).
12. Child day care services(8351).
13. Computer programming,data processing and other services(7371 -7376,7379).
14, Credit reporting services(7323).
15. Debt counseling(7299,no other miscellaneous services)
16. Direct mail advertising services(7331).
17. Educational plants and public schools subject to LDC section 5.05,14.
18. Engineering services(8711).
19, Essential services,subject to section 2.01,03.
20, Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing
homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities
pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5.05.04.
21. Health services,offices and clinics(8011-8049).
22. Insurance carriers,agents and brokers(6311-6399,6411).
23. Landscape architects,consulting and planning(0781).
24. Legal services(8111).
25. Loan brokers(6163).
26. Management services(8741 and 8742).
27. Mortgage bankers and loan correspondents(6162).
28. Personal credit institutions(6141).
29. Photographic studios,portrait(7221).
30. Physical fitness facilities(7991,permitted only when physically integrated and operated in conjunction with another
permitted use in this district-no stand-alone facilities shall be permitted).
31. Public relations services(8743).
32. Radio,television and publishers advertising representatives(7313).
33. Real Estate(6531-6552).
34. Secretarial and court reporting services(7338).
35. Security and commodity brokers,dealer,exchanges and services(621'1-6289): �t C ` Page 2 of 22
36. Shoe repair shops and shoeshine parlors(7251).
37. Social services,individual and family(8322 activity centers,elderly or handicapped only;day care centers,adult and
handicapped only).
38. Surveying services(8713).
39. Tax return preparation services(7291).
40. Travel agencies(4724,no other transportation services).
41. Any other commercial use or professional services which is comparable in nature with the foregoing uses inc luding those
that exclusively serve the administrative as opposed to the operational functions of a business and are associated purely
with activities conducted in an office.
b. Accessory uses.
1. Uses and structures that are accessory and incidental to the uses permitted as of right in the C-1 district.
2. Caretaker's residence,subject to section 5,03.05.
c. Conditional uses.The following uses are permissible asconditional usesin the(C-1)commercial professional and general office
district,subject to the standards and procedures established in section 10,08.00.
1. Ancillary plants.
2. Automobile parking,automobile parking garages and parking structures(7521 —shall not be construed to permit the activity
of"tow-in parking lots").
3. Banks,credit unions and trusts(6011-6099).
4. Churches.
5. Civic,social and fraternal associations(8641).
6. Eating places primarily intended to serve employees and customers of the permitted use(5812,excluding Automats(eating
places);caterers;commissary restaurants;contract feeding;dinner theaters;drive-in restaurants;industrial feeding;
restaurants;carry-out;theaters;dinner).The request may be permitted subject to the following criteria:
a. The use is physically integrated and operated in conjunction with another permitted use in the C-1 district(no stand-
alone facilities shall be permitted).
b. There is no exterior signage.
c. There is no direct exterior access.
d. Parking for the permitted use is consistent with LDC section 4.05.04.
e. In addition to the Planning Commission's Findings,its recommendation shall include,but not be limited to,the following
considerations for the conditional use request:
i. Seating capacity.
ii. Gross floor area of the request in relation to the principal structure.
7. Educational services(8211-8222).
8. Funeral services(7261,except crematories).
9. Home health care services(8082).
10. Homeless shelters.
11. Libraries(8231,except regional libraries).
12. Mixed residential and commercial uses subject to design criteria contained in section 4.02.38 except where superseded by
the following criteria:
i. A site development plan is approved pursuant to section 10.02.03 that is designed to protect the character of the
residential uses and of the neighboring lands;
ii. The commercial uses in the development may be limited in hours of operation,size of delivery trucks,and type of
equipment;
iii. The residential uses are designed so that they are compatible with the commercial uses;
iv. Residential dwellings units are located above principal uses;
v. Residential and commercial uses do not occupy the same floor of a building;
vi. The number of residential dwellings units shall be controlled by the dimensional standards of the underlying district,
together with the specific requirement that in no instance shall the residential uses exceed fifty(50%)percent of the
gross floor area of the building;
vii. Building height may not exceed two(2)stories;
viii. Each residential dwelling unit shall contain the following minimum floor areas:Efficiency and one-bedroom,450
Exhi!it C - Page 3 of 22
square feet;two-bedroom,650 square feet;three-bedroom,90 square eet;
Ix. A minimum of 30 percent of the mixed use development shall be maintained as open space.The following may be
used to satisfy the open space requirements;areas used to satisfy water management requirements,landscaped areas,
recreation areas,or setback areas not covered with Impervious surface or used for parking(parking lot Islands may not
be used unless existing native vegetation Is maintained);
x. The mixed commercial/residential structure shall be designed to enhance compatibility of the commercial and
residential uses through such measures as,but not limited to,minimizing noise associated with commercial uses;
directing commercial lighting away from residential units;and separating pedestrian and vehicular access ways and
parking areas from residential units,to the greatest extent possible.
13. Religious organizations(8661).
14. Soup kitchens.
15. Veterinary services(0742,excluding outdoor kenneling).
16. Any other commercial or professional use which is comparable in nature with the foregoing list of permitted uses and
consistent with the purpose and intent statement of the district as determined by the board of zoning appeals pursuant to
section 10.08.00.
B. Commercial Convenience District(C-2).The purpose and intent of the commercial convenience district(C-2)is to provide lands where commercial
establishments may be located to provide the small-scale shopping and personal needs of the surrounding residential land uses within convenient
travel distance except to the extent that office uses carried forward from the C-1 district will expand the traditional neighborhood size.However,
the intent of this district is that retail and service uses be of a nature that can be economically supported by the Immediate residential environs.
Therefore,the uses should allow for goods and services that households require on a daily basis,as opposed to those goods and services that
households seek for the most favorable economic price and,therefore,require much larger trade areas.It is intended that the C-2 district
implements the Collier County GMP within those areas designated agricultural/rural;estates neighborhood center district of the Golden Gate
Master Plan;the neighborhood center district of the immokalee Master Plan;and the urban mixed use district of the future land use element
permitted in accordance with the locational criteria for commercial and the goals,objectives,and policies as identified in the future land use
element of the Collier County GMP.The maximum density permissible in the C-2 district and the urban mixed use land use designation shall be
guided,in part,by the density rating system contained in the future land use element of the Collier County GMP.The maximum density
permissible or permitted in a district shall not exceed the density permissible under the density rating system.
1. The following uses,as identified with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for
within this section are permissible by right,or as accessory or conditional uses within the C-2 commercial convenience district.
a. Permitted uses.
1. Accounting(8721).
2. Adjustment and collection services(7322).
3. Advertising agencies(7311).
4. Apparel and accessory stores(5611-5699)with 1,800 square feet or less of gross floor area in the principal structure.
5. Architectural services(8712).
6. Auditing(8721).
7. Automobile Parking,automobile parking garages and parking structures(7521 -shall not be construed to permit the activity
of"tow-in parking lots").
8. Banks,credit unions and trusts(6011-6099).
9. Barber shops(7241,except for barber schools).
10. Beauty shops(7231,except for beauty schools).
11. Bookkeeping services(8721).
12. Business consulting services(8748).
13. Business credit institutions(6153-6159).
14. Child day care services(8351).
15. Churches.
16. Civic,social and fraternal associations(8641).
17. Commercial art and graphic design(7336).
18. Commercial photography(7335).
19. Computer and computer software stores(5734)with 1,800 square feet or less of gross floor area in the principal structure.
20. Computer programming,data processing and other services(7371-7379).
21. Credit reporting services(7323).
22. Debt counseling(7299,no other miscellaneous services)
Exhibit C - Page 4 of 22
23. Direct mall advertising services(7331).
24. Eating places(5812,except contract feeding,dinner theaters,institutional food service,and industrial feeding)with 2,800
square feet or less of gross floor area in the principal structure).
25. Educational plants and public schools subject to LDC section 5.05.14.
26. Engineering services(8711).
27. Essential services,subject to section 2.01.03.
28. Food stores(groups 5411 -except supermarkets,5421-5499)with 2,800 square feet or less of gross floor area in the
principal structure.
29. Funeral services(7261,except crematories).
30. Garment pressing,and agents for laundries and drycleaners(7212).
31. Gasoline service stations(5541,subject to section 5.05.05).
32. General merchandise stores(5331-5399)with 1,800 square feet or less of gross floor area in the principal structure.
33. Glass stores(5231)with 1,800 square feet or less of gross floor area in the principal structure.
34. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing
homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities
pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5.05.04.
35. Hardware stores(5251)with 1,800 square feet or less of gross floor area in the principal structure.
36. Health services,offices and clinics(8011-8049).
37. Home furniture and furnishings stores(5713-5719)with 1,800 square feet or less of gross floor area in the principal
structure.
38. Home health care services(8082).
39. Insurance carriers,agents and brokers(6311-6399,6411).
40. Landscape architects,consulting and planning(0781).
41. Laundries and drycleaning,coin operated-self service(7215).
42. Legal services(8111).
43. Libraries(8231,except regional libraries).
44. Loan brokers(6163).
45. Management services(8741 and 8742).
46. Mortgage bankers and loan correspondents(6162).
47. Musical instrument stores(5736)with 1,800 square feet or less of gross floor area in the principal structure.
48. Paint stores(5231)with 1,800 square feet or less of gross floor area in the principal structure.
49. Personal credit institutions(6141).
50. Photocopying and duplicating services(7334).
51. Photofinishing laboratories(7384).
52. Photographic studios,portrait(7221).
53. Physical fitness facilities(7991,permitted only when physically integrated and operated in conjunction with another
permitted use in this district-no stand-alone facilities shall be permitted).
54. Public relations services(8743).
55. Radio,television and consumer electronics stores(5731)with 1,800 square feet or less of gross floor area in the principal
structure.
56. Radio,television and publishers advertising representatives(7313).
57. Real Estate(6531-6552).
58. Record and prerecorded tape stores(5735)with 1,800 square feet or less of gross floor area in the principal structure.
59. Religious organizations(8661).
60. Repair services-miscellaneous(7629-7631,except aircraft,business and office machines,large appliances,and white goods
such as refrigerators and washing machines).
61. Retail services-miscellaneous(5912,5942-5961)with 1,800 square feet or less of gross floor area in the principal structure
•
62. Secretarial and court reporting services(7338).
63. Security and commodity brokers,dealer,exchanges and services(6211-6289).
64. Shoe repair shops and shoeshine parlors(7251).
65. Social services,individual and family(8322 activity centers,elderly or handicapped only;day care centers,adult and
Exhibit C - Page 5 of 22
handicapped only).
66. Surveying services(8713).
67. Tax return preparation services(7291).
68. Travel agencies(4724,no other transportation services).
69. United State Postal Service(4311,except major distribution center).
70. Veterinary services(0742,excluding outdoor kenneling).
71. Videotape rental(7841)with 1,800 square feet or less of gross floor area in the principal structure.
72. Wallpaper stores(5231)with 1,800 square feet or less of gross floor area in the principal structure.
73. Any other commercial use or professional services which is comparable in nature with the foregoing uses Including those
that exclusively serve the administrative as opposed to the operational functions of a business and are associated purely
with activities conducted in an office.
74. Any other commercial or professional use which is comparable in nature with the(C-1)list of permitted uses and consistent
with the purpose and intent statement of the district as determined by the board of zoning appeals pursuant to section
10.08.00.
75. An existing lawful structure over 1,800 sq.ft.as of July 14,2014 may be occupied by any C-2 permitted use with a 1,800 sq.ft.
or greater limitation.
b. Accessory Uses.
1. Uses and structures that are accessory and incidental to the customary uses permitted as of right in the C-2 district.
2. Where play areas are constructed as an accessory use to a permitted use,the following conditions shall apply:
i. A minimum five and one-half(5%)foot high reinforced fence shall be installed on all sides of the play area which are not
open to the principal structure;
ii. Ingress to and egress from the play area shall be made only from the principal structure,however an emergency exit
from the play area shall be provided which does not empty into the principal structure.
iii. The play equipment shall be set back a minimum distance of five(5)feet from the required fence and from the principal
structure.
3. Caretaker's residence,subject to section 5.03.05.
4. Outside storage or display of merchandise when specifically permitted for a use,otherwise prohibited,subject to section
4.02.12.
c. Conditional uses.The following uses are permissible as conditional uses in the commercial convenience district(C-2),subject to
the standards and procedures established in section 10.08.00.
1. Ancillary plants.
2. Educational services(8211,8222).
3. Homeless shelters.
4. Household appliance stores(5722,limited to air-conditioning room units,self-contained-retail,electronic household
appliance stores-retail,household appliance stores,electric or gas-retail,sewing machine stores-retail,and vacuum cleaner
stores-retail)with 1,800 square feet or less of gross floor area in the principal structure.
5. Marinas(4493 excluding boat yards,storage and incidental repair),subject to LDC section 5.05.02.
6. Membership organizations,miscellaneous(8699,excluding humane societies,animal)limited to 1,800 square feet or less of
gross floor area in the principal structure.
7. Mixed residential and commercial uses subject to design criteria contained in LDC section 4.02.38 except where superseded
by the following criteria:
i. A site development plan is approved pursuant to section 10.02.03 that is designed to protect the character of the
residential uses and neighboring lands;
ii. The commercial uses in the development may be limited in hours of operation,size of delivery trucks,and type of
equipment;
iii. The residential uses are designed so that they are compatible with the commercial uses;
iv. Residential dwellings units are located above principal uses;
v. Residential and commercial uses do not occupy the same floor of a building;
vi. The number of residential dwellings units shall be controlled by the dimensional standards of the underlying district,
together with the specific requirement that in no instance shall the residential uses exceed fifty(50%)percent of the
gross floor area of the building or the density permitted under the growth management plan;
vii. Building height may not exceed two(2)stories;
viii. Each residential dwelling unit shall contain the following minimum"floor�a reas fficieenccyyl+fio one-bbeed r000mm,,450 square f
three-bedroom,900 square feet;
ix. The residential dwellings units shall be restricted to occupancy by the owners or lessees of the commercial units below;
x. A minimum of thirty(30)percent of the mixed use development shall be maintained as open space.The following may
be used to satisfy the open space requirements;areas used to satisfy water management requirements;landscaped
areas,recreation areas,or setback areas not covered with impervious surface or used for parking(parking lot Islands
may not be used unless existing native vegetation is maintained);
xi. The mixed commercial/residential structure shall be designed to enhance compatibility of the commercial and
residential uses through such measures as,but not limited to,minimizing noise associated with commercial uses;
directing commercial lighting away from residential units;and separating pedestrian and vehicular accessways and
parking areas from residential units,to the greatest extent possible.
8. Personal services,miscellaneous(7299-not listed as principle uses and limited to babysitting bureaus;birth certificate
agencies;car title and tag services;computer photography or portraits;dating service;diet workshops;dress suit rental;tux
rental;genealogical investigation service;hair removal;shopping service for individuals only;wardrobe service,except
theatrical;wedding chapels,privately operated)with 1,800 square feet or less of gross floor area in the principal structure.
9. Permitted personal service,video rental or retail uses with more than 1,800 square feet of gross floor area in the principal
structure.
10. Permitted food service(eating places or food stores)uses with more than 2,800 square feet of gross floor area in the
permitted principal structure.
11. Soup kitchens.
12. Any other convenience commercial use which is comparable in nature with the foregoing(C-2)list of permitted uses and
consistent with the purpose and intent statement of the district,as determined by the board of zoning appeals pursuant to
section 10.08.00.
C. Commercial Intermediate District(C-3).The purpose and intent of the commercial intermediate district(C-3)is to provide for a wider variety of
goods and services intended for areas expected to receive a higher degree of automobile traffic.The type and variety of goods and services are
those that provide an opportunity for comparison shopping,have a trade area consisting of several neighborhoods,and are preferably located at
the intersection of two-arterial level streets.Most activity centers meet this standard.This district is also intended to allow all of the uses permitted
in the C-1 and C-2 zoning districts typically aggregated in planned shopping centers.This district is not intended to permit wholesaling type of
uses,or land uses that have associated with them the need for outdoor storage of equipment and merchandise.A mixed-use project containing a
residential component is permitted in this district subject to the criteria established herein.The C-3 district is permitted in accordance with the
locational criteria for commercial and the goals,objectives,and policies as identified in the future land use element of the Collier County GMP.The
maximum density permissible in the C-3 district and the urban mixed use land use designation shall be guided,in part,by the density rating
system contained in the future land use element of the Collier County GMP.The maximum density permissible or permitted in the C-3 district shall
not exceed the density permissible under the density rating system.
1. The following uses,as identified with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for
within this section are permissible by right,or as accessory or conditional uses within the commercial intermediate district(C-3).
a. Permitted uses.
1. Accounting(8721).
2. Adjustment and collection services(7322).
3. Advertising agencies(7311).
4. Animal specialty services,except veterinary(0752,excluding outside kenneling).
5. Apparel and accessory stores(5611-5699)with 5,000 square feet or less of gross floor area in the principal structure.
6. Architectural services(8712).
7. Auditing(8721).
8. Auto and home supply stores(5531)with 5,000 square feet or less of gross floor area in the principal structure.
9. Automobile Parking,automobile parking garages and parking structures(7521 —shall not be construed to permit the activity
of"tow-in parking lots").
10. Automotive services(7549)except that this shall not be construed to permit the activity of"wrecker service(towing)
automobiles,road and towing service."
11. Banks,credit unions and trusts(6011-6099).
12. Barber shops(7241,except for barber schools).
13. Beauty shops(7231,except for beauty schools).
14. Bookkeeping services(8721).
Exhibit C - Page 7 of 22
15. Business associations(8611).
16. Business consulting services(8748).
17. Business credit institutions(6153-6159).
18, Business services-miscellaneous(7389,except auctioneering service,automobile recovery,automobile repossession,batik
work,bottle exchanges,bronzing,cloth cutting,contractors'disbursement,cosmetic kits,cotton Inspection,cotton sampler,
directories-telephone,drive-away automobile,exhibits-building,filling pressure containers,field warehousing,fire
extinguisher,floats-decoration,folding and refolding,gas systems,bottle labeling,liquidation services,metal slitting and
shearing,packaging and labeling,patrol of electric transmission or gas lines,pipeline or powerline Inspection,press clipping
service,recording studios,repossession service,rug binding,salvaging of damaged merchandise,scrap steel cutting and
slitting,shrinking textiles,solvent recovery,sponging textiles,swimming pool cleaning,tape slitting,texture designers,textile
folding,tobacco sheeting,window trimming,and yacht brokers).
19. Child day care services(8351).
20. Churches.
21. Civic,social and fraternal associations(8641).
22. Commercial art and graphic design(7336).
23. Commercial photography(7335).
24. Computer and computer software stores(5734)with 5,000 square feet or less of gross floor area in the principal structure.
25. Computer programming,data processing and other services(7371-7379).
26. Credit reporting services(7323).
27. Direct mail advertising services(7331).
28. Drycleaning plants(7216,nonindustrial drycleaning only).
29. Drug stores(5912).
30. Eating places(5812 only)with 6,000 square feet or less in gross floor area in the principal structure.All establishments
engaged in the retail sale of alcoholic beverages for on-premise consumption are subject to locational requirements of
section 5.05.01.
31. Educational plants and public schools subject to LDC section 5.05.14.
32, Engineering services(8711).
33. Essential services,subject to section 2.01.03.
34. Federal and federally-sponsored credit agencies(6111).
35. Food stores(groups 5411-5499)with 5,000 square feet or less of gross floor area in the principal structure.
36. Funeral services(7261,except crematories).
37. Garment pressing,and agents for laundries and drycleaners(7212).
38. Gasoline service stations(5541,subject to section 5.05.05).
39. General merchandise stores(5331-5399)with 5,000 square feet or less of gross floor area in the principal structure.
40, Glass stores(5231)with 5,000 square feet or less of gross floor area in the principal structure.
41. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing
homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities
pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5.05.04.
42. Hardware stores(5251)with 1,800 square feet or less of gross floor area in the principal structure.
43. Health services,offices and clinics(8011-8049).
44. Home furniture and furnishings stores(5712-5719)with 5,000 square feet or less of gross floor area in the principal
structure.
45. Home health care services(8082).
46. Household appliance stores(5722)with 5,000 square feet or less of gross floor area in the principal structure.
47. Insurance carriers,agents and brokers(6311-6399,6411).
48. Labor unions(8631).
49. Landscape architects,consulting and planning(0781).
50. Laundries and drycleaning,coin operated-self service(7215).
51. Laundries,family and commercial(7211).
52. Legal services(8111).
53. Libraries(8231).
54. Loan brokers(6163).
Exhibit C - Page 8 of 22
55. Management services(8741 and 8742).
56. Marinas(4493),subject to section 5.05.02.
57. Membership organizations,miscellaneous(8699).
58. Mortgage bankers and loan correspondents(6162).
59. Museums and art galleries(8412).
60. Musical instrument stores(5736)with 5,000 square feet or less of gross floor area in the principal structure .
61. Paint stores(5231)with 5,000 square feet or less of gross floor area in the principal structure.
62. Personal credit Institutions(6141).
63. Personal services,miscellaneous(7299-babysitting bureaus,clothing rental,costume rental,dating service,debt counseling,
depilatory salons,diet workshops,dress suit rental,electrolysis,genealogical investigation service,and hair removal only)
with 5,000 square feet or less of gross floor area in the principal structure.
64. Personnel supply services(7361 and 7363).
65. Photocopying and duplicating services(7334).
66. Photofinishing laboratories(7384).
67. Photographic studios,portrait(7221).
68. Physical fitness facilities(7991;7911,except discotheques).
69. Political organizations(8651),
70. Professional membership organizations(8621).
71. Public administration(groups 9111-9199,9229,9311,9411-9451,9511-9532,9611-9661).
72. Public relations services(8743).
73. Radio,television and consumer electronics stores(5731)with 5,000 square feet or less of gross floor area in the principal
structure.
74. Radio,television and publishers advertising representatives(7313).
75. Real Estate(6531-6552).
76. Record and prerecorded tape stores(5735)with 5,000 square feet or less of gross floor area in the principal structure.
77. Religious organizations(8661).
78. Repair services-miscellaneous(7629-7631,7699-bicycle repair,binocular repair,camera repair,key duplicating,
lawnmower repair,leather goods repair,locksmith shop,picture framing,and pocketbook repair only).
79. Retail nurseries,lawn and garden supply stores(5261)with 5,000 square feet or less of gross floor area in the principal
structure.
B0. Retail services-miscellaneous(5921-5963 except pawnshops and building materials,5992-5999 except auction rooms,
awning shops,gravestones,hot tubs,monuments,swimming pools,tombstones and whirlpool baths)with 5,000 square feet
or less of gross floor area in the principal structure.
81. Secretarial and court reporting services(7338).
82. Security and commodity brokers,dealer,exchanges and services(6211-6289).
83. Shoe repair shops and shoeshine parlors(7251).
84. Social services,individual and family(8322 activity centers,elderly or handicapped only;day care centers,adult and
handicapped only).
85. Surveying services(8713).
86. Tax return preparation services(7291).
87. Travel agencies(4724,no other transportation services).
88. United State Postal Service(4311,except major distribution center).
89. Veterinary services(0742,excluding outdoor kenneling).
90. Videotape rental(7841)with 5,000 square feet or less of gross floor area in the principal structure.
91. Wallpaper stores(5231)with 5,000 square feet or less of gross floor area in the principal structure.
92. Any use which was permissible under the prior General Retail Commercial(GRC)zoning district,as identified by Zoning
Ordinance adopted October 8,1974,and which was lawfully existing prior to the adoption of this Code.
93. Any of the foregoing uses that are subject to a gross floor area limitation shall be permitted by right without the maximum
floor area limitation if the use is developed as a component of a shopping center.
94. Any other commercial use or professional services which is comparable in nature with the foregoing uses including those
that exclusively serve the administrative as opposed to the operational functions of a business and are associated purely
with activities conducted in an office.
Pa
f
2
95. Any other commercial or professional use which is comparable in natuurre� -i)with the(C list of pp fhItted uses an consistent witl
statement of the district as determined by the board of zoning appeals pursuant to section 10.08,00.
96, An existing lawful structure over 5,000 sq.ft.as of July 14,2014 may be occupied by any C-3 permitted use with a 5,000 sq.ft.
or greater limitation.
b. Accessory Uses.
1. Uses and structures that are accessory and Incidental to the uses permitted as of right in the C-3 district.
2. Caretaker's residence,subject to section 5.03.05.
3. Outside storage or display of merchandise when specifically permitted for a use,otherwise prohibited,subject to section
4.02.12.
c. Conditional uses.The following uses are permissible as conditional uses in the commercial intermediate district(C-3),subject to
the standards and procedures established in sections 4.02.02 and 10.08.00.
1, Amusements and recreation services(7999-boat rental,miniature golf course,bicycle and moped rental,rental of beach
chairs and accessories only).
2. Ancillary plants.
3. Automotive vehicle dealers(5511,limited to automobile agencies(dealers)-retail and only new vehicles).In addition to the
Planning Commission's Findings,its recommendation shall include,but not be limited to,the following considerations for the
conditional use request:
a. Controls on outdoor paging or amplified systems used as part of the daily operations.
b. Location of enclosed service areas,with exception for entry/exit doors.
c. The number of service bays.
d. Operation hours.
e. Adequacy of buffer(s)
f. Location of gasoline storage and/or fueling tanks.
g. Means of delivery of automobiles.
4. Bowling centers(7933).
5. Coin operated amusement devices(7993).
6. Courts(9211).
7. Drinking places(5813)excluding bottle clubs.All establishments engaged in the retail sale of alcoholic beverages for on-
premise consumption are subject to the locational requirements of section 5.05.01.
8. Educational services(8221 and 8222).
9. Fire protection(9224).
10. Food stores with greater than 5,000 square feet of gross floor area in the principal structure(groups 5411-5499).
11. Health services(8071,8092,and 8099).
12. Homeless shelters.
13. Hospitals(groups 8062-8069).
14. Legal counsel and prosecution(9222).
15. Medical equipment rental and leasing(7352).
16. Membership sports and recreational clubs indoor only(7997).
17. Mixed residential and commercial uses,subject to design criteria contained in section 4.02.38 except where superseded by
the following criteria:
i. A site development plan is approved pursuant to section 10.02.03 that is designed to protect the character of the
residential uses and neighboring lands;
ii. The commercial uses in the development may be limited in hours of operation,size of delivery trucks,and type of
equipment;
iii. The residential uses are designed so that they are compatible with the commercial uses;
iv. Residential dwellings units are located above principal uses;
v. Residential and commercial uses do not occupy the same floor of a building;
vi. The number of residential dwellings units shall be controlled by the dimensional standards of the C-3 district,together
with the specific requirement that in no instance shall the residential uses exceed 50 percent of the gross floor area of
the building or the density permitted under the growth management plan;
vii. Building height may not exceed two stories;
viii. Each residential dwelling unit shall contain the following minimum floor areas:efficiency and one-bedroom,450 square
E
feet;two-bedroom,650 square feet;three-bedroom,900 square'feetlfJit C - Page 10 of 22
ix. The residential dwellings units shall be restricted to occupancy by the owners or lessees of the commercial units below;
x. A minimum of thirty(30)percent of the mixed use development shall be maintained as open space.The following may
be used to satisfy the open space requirements;areas used to satisfy water management requirements;landscaped
areas;recreation areas;or setback areas not covered with impervious surface or used for parking(parking lot islands
may not be used unless existing native vegetation is maintained);
xi. The mixed commercial/residential structure shall be designed to enhance compatibility of the commercial and
residential uses through such measures as,but not limited to,minimizing noise associated with commercial uses;
directing commercial lighting away from residential units;and separating pedestrian and vehicular accessways and
parking areas from residential units,to the greatest extent possible.
18. Motion picture theaters,(7832-except drive-in).
19. Permitted food service(5812,eating places)uses with more than 6,000 square feet of gross floor area in the principal
structure.
20. Permitted personal services,video rental or retail uses(excluding drug stores-5912)with more than 5,000 square feet of
gross floor area In the principal structure.
21. Permitted use with less than 700 square feet gross floor area in the principal structure.
22. Public order and safety(9229).
23. Social services(8322-other than those permitted,8331-8399)
24. Soup kitchens.
25. Theatrical producers and miscellaneous theatrical services(7922-community theaters only).
26. Vocational schools(8243-8299).
27. Any other intermediate commercial use which is comparable in nature with the foregoing list of permitted uses and
consistent with the permitted uses and purpose and intent statement of the district,as determined by the board of zoning
appeals pursuant to section 10.08.00.
D. General Commercial District(C-4).The general commercial district(C-4)is intended to provide for those types of land uses that attract large
segments of the population at the same time by virtue of scale,coupled with the type of activity.The purpose and intent of the C-4 district is to
provide the opportunity for the most diverse types of commercial activities delivering goods and services,including entertainment and recreational
attractions,at a larger scale than the C-1 through C-3 districts.As such,all of the uses permitted in the C-1 through C-3 districts are also permitted
in the C-4 district.The outside storage of merchandise and equipment is prohibited,except to the extent that it is associated with the commercial
activity conducted on-site such as,but not limited to,automobile sales,marine vessels,and the renting and leasing of equipment.Activity centers
are suitable locations for the uses permitted by the C-4 district because most activity centers are located at the intersection of arterial roads.
Therefore the uses in the C-4 district can most be sustained by the transportation network of major roads.The C-4 district is permitted in
accordance with the locational criteria for uses and the goals,objectives,and policies as identified in the future land use element of the Collier
County GMP.The maximum density permissible or permitted in a district shall not exceed the density permissible under the density rating system.
1. The following uses,as defined with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for
within this section are permissible by right,or as accessory or conditional uses within the general commercial district(C-4).
a. Permitted uses.
1. Accounting(8721).
2. Adjustment and collection services(7322).
3. Advertising agencies(7311).
4. Advertising-miscellaneous(7319).
5. Agricultural services(0783).
6. Amusement and recreation services,indoor.
7. Amusement and recreation services,outdoor(7999-fishing piers and lakes operation,houseboat rental,pleasure boat
rental,operation of party fishing boats,canoe rental only).
8. Ancillary plants.
9. Animal specialty services,except veterinary(0752,excluding outside kenneling).
10. Apparel and accessory stores(5611-5699).
11. Architectural services(8712).
12. Auditing(8721).
13. Auto and home supply stores(5531).
14. Automobile Parking,automobile parking garages and parking structures(7521 -shall not be construed to permit the activity
of"tow-in parking lots").
E
15. Automotive services(7549)except that this shall not be construed to permit t e activity of wt P099 or service(t wl g)automobile
16. Automotive vehicle and equipment dealers(5511 and 5599,new vehicles only).
17. Banks,credit Unions and trusts(6011-6099).
18. Barber shops(7241,except for barber schools).
19. Beauty shops(7231,except for beauty schools).
20. Bookkeeping services(8721).
21. Bowling centers,indoor(7933).
22. Building cleaning and maintenance services(7349).
23. Business associations(8611).
24. Business consulting services(8748).
25. Business credit institutions(6153-6159).
26. Business services-miscellaneous(7381,7389-except auctioneering service,automobile recovery,automobile repossession,
batik work,bottle exchanges,bronzing,cloth cutting,contractors'disbursement,cosmetic kits,cotton inspection,cotton
sampler,directories-telephone,drive-away automobile,exhibits-building,filling pressure containers,field warehousing,fire
extinguisher,floats-decoration,folding and refolding,gas systems,bottle labeling,liquidation services,metal slitting and
shearing,packaging and labeling,patrol of electric transmission or gas lines,pipeline or powerline inspection,press clipping
service,recording studios,repossession service,rug binding,salvaging of damaged merchandise,scrap steel cutting and
slitting,shrinking textiles,solvent recovery,sponging textiles,swimming pool cleaning,tape slitting,texture designers,textile
folding,tobacco sheeting,and window trimming service).
27. Cable and other pay television services(4841)including communications towers up to specified height,subject to section-
5.05.09.
28. Carpet and upholstery cleaning(7217).
29. Carwashes(7542)provided that carwashes abutting residential zoning districts shall be subject to section 5.05.11 of this
Code.
30. Child day care services(8351).
31. Churches.
32. Civic,social and fraternal associations(8641).
33. Coin-operated laundries and dry cleaning(7215).
34. Coin operated amusement devices,indoor(7993).
35. Commercial art and graphic design(7336).
36. Commercial photography(7335).
37. Commercial printing(2752,excluding newspapers).
38. Computer programming,data processing and other services(7371-7379).
39. Computer and computer software stores(5734).
40. Credit reporting services(7323).
41. Dance studios,schools and halls,indoor(7911).
42. Detective,guard and armored car service(7381,except armored car and dog rental).
43. Department stores(5311).
44. Direct mail advertising services(7331).
45. Disinfecting and pest control services(7342).
46. Drycleaning plants(7216,nonindustrial drycleaning only).
47. Drug stores(5912).
48. Eating and drinking establishments(5812 and 5813)excluding bottle clubs.All establishments engaged in the retail sale of
alcoholic beverages for on-premise consumption are subject to the locational requirements of section 5.05.01.
49. Educational plants and public schools subject to LDC section 5.05.14.
50. Educational services(8221 and 8222).
51. Electrical and electronic repair shops(7622-7629).
52. Engineering services(8711).
53. Equipment rental and leasing(7359-except airplane,industrial truck,portable toilet and oil field equipment renting and
leasing).
54. Essential services,subject to section 2.01.03.
55. Facilities support management services(8744).
Exhibit C - Page 12 of 22
56. Federal and federally-sponsored credit agencies(6111).
57. Food stores(groups 5411-5499).
58. Funeral services(7261,except crematories).
59. Garment pressing,and agents for laundries and drycleaners(7212).
60. Gasoline service stations(5541),with services and repairs as described In section 5.05.05.
61. General merchandise stores(5331-5399).
62. Glass stores(5231),
63. Golf courses,public(7992).
64. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing
homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities
pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5.05.04.
65. Hardware stores(5251).
66. Health services,miscellaneous(8092-8099).
67. Health services,offices and clinics(8011-8049).
68. Home furniture and furnishings stores(5712-5719).
69. Home health care services(8082).
70. Hospitals(8062-8069).
71. Hotels and motels(7011,7021 and 7041)when located within an activity center.
72. Household appliance stores(5722).
73. Insurance carriers,agents and brokers(6311-6399,6411).
74. Labor unions(8631).
75. Landscape architects,consulting and planning(0781).
76. Laundries and drycleaning,coin operated-self service(7215).
77. Laundries,family and commercial(7211).
78. Laundry and garment services,miscellaneous(7219).
79. Legal services(8111).
80. Libraries(8231).
81. Loan brokers(6163).
82. Management services(8741,8742).
83. Marinas(4493 and 4499-except canal operation,cargo salvaging,ship dismantling,lighterage,marine salvaging,marine
wrecking,and steamship leasing),subject to section 5.05.02.
84. Medical and dental laboratories(8071 and 8072).
85. Medical equipment rental and leasing(7352).
86. Membership organizations,miscellaneous(8699).
87. Membership sports and recreation clubs,indoor(7997).
88. Mortgage bankers and loan correspondents(6162).
89. Motion picture theaters(7832).
90. Motorcycle dealers(5571).
91. Museums and art galleries(8412).
92. Musical instrument stores(5736).
93. News syndicates(7383).
94. Nursing and professional care facilities(8051-8059).
95. Outdoor advertising services(7312).
96. Paint stores(5231).
97. Passenger car leasing(7515).
98. Passenger car rental(7514).
99. Personal credit institutions(6141).
100 Personal services,miscellaneous(7299).
• 101 Personnel supply services(7361 and 7363).
102 Photocopying and duplicating services(7334).
• Photofinishing laboratories(7384).
103 104 Photographic studios,portrait(7221hibit C - Page 13 of 22
).
• • 105 Physical fitness facilities(7991).
• 106 Political organizations
. (8651).
107 Professional membership organizations(8621).
• 108 Professional sports clubs and promoters,indoor(7941).
109 Public administration(groups 9111-9199, 9229,9311,
. 9411-9451,9511-9532,9611-9661).
110 Public or private parks and playgrounds.
• 111 Public relations services(8743).
• 112 Radio,television and consumer electronics stores(5731).
• 113 Radio,television and
. publishers advertising
representatives(7313).
114 Radio and television broadcasting stations(4832 and 4833).
• 115 Real Estate(6512,6531-6552).
• 116 Record and prerecorded tape stores(5735).
• 117 Religious organizations
. (8661).
118 Repair services-miscellaneous(7699-except agricultural equipment repair,awning repair,beer pump coil cleaning and
. repair,blacksmith shops,catch basin,septic tank and cesspool cleaning,industrial truck repair,machinery cleaning,repair of
service station equipment,boiler cleaning,tinsmithing,tractor repair).
119 Research,development and testing services(8731-8734).
• 120 Retail-miscellaneous(5921-5963,5992-5999).
121 Retail nurseries,lawn and garden supply stores(5261).
• 122 Reupholstery and
furniture repair(7641).
123 Secretarial and court reporting services(7338).
• 124 Security and commodity brokers,dealer,exchanges and services(6211-6289).
• 125 Security systems services(7382).
• 126 Shoe repair shops and
shoeshine parlors(7251).
127 Social services,individual and family(8322-8399,except for homeless shelters and soup kitchens).
• 128 Surveying services(8713).
• 129 Tax return preparation services(7291).
• 130 Telegraph and other
. message communications
(4822)including
communications towers
up to specified height,
subject to section 5.05.09.
131 Telephone communications(4812 and 4813)including communications towers up to specified height,subject to section
. 5.05.09.
132 Theatrical producers and miscellaneous theatrical services,indoor(7922-7929,including bands,orchestras and entertainers;
. except motion picture).
133 Travel agencies(4724,no other transportation services).
• 134 United State Postal Service(4311,except major distribution center).
• 135 Veterinary services(0741 and 0742,excluding outside
. kenneling).
136 Videotape rental(7841).
• 137 Vocational schools(8243-8299).
• Wallpaper stores(5231).
138 139 Watch,clock and jewelry repair(7b31):hibit C ' Page 14 of 22
• • 140 Any use which was permissible under the prior General
Retail Commercial(GRC)zoning district,as Identified by
Zoning Ordinance adopted October 8,1974,and which was
lawfully existing prior to the adoption of this Code,
141 Any other commercial use or professional services which is comparable in nature with the foregoing uses including those
. that exclusively serve the administrative as opposed to the operational functions of a business and are purely associated
with activities conducted In an office.
142 Any other commercial or professional use which is comparable in nature with the(C-1)list of permitted uses and consistent
. with the purpose and intent statement of the district as determined by the board of zoning appeals pursuant to section
10.08.00.
b. Accessory Uses.
1. Uses and structures that are accessory and incidental to the uses permitted as of right in the C-4 district.
2. Caretaker's residence,subject to section 5.03.05.
3. Outside storage or display of merchandise when specifically permitted for a use,otherwise prohibited,subject to section
4.02.12.
c. Conditional uses.The following uses are permitted as conditional uses in the general commercial district(C-4),subject to the
standards and procedures established in section 10.08.00.
1. Animal specialty services,except veterinary(0752,with outside kenneling).
2. Amusement and recreation services,outdoor(7948,7992,7996,7999).
3. Auctioneering services,auction rooms(7389,5999).
4. Automotive dealers and gasoline service stations(5511,5521).
5. Automotive rental and leasing,outdoor display permitted(7513,7519).
6. Boat dealers(5551).
7. Bottle clubs.(All establishments engaged in the retail sale of alcoholic beverages for on-premise consumption are subject to
the locational requirements of section 5.05.01.).
8. Communication towers above specified height,subject to section 5.05.09.
9. Dealers not elsewhere classified(5599 outdoor display permitted,excluding Aircraft dealers-retail).
10. Fire protection(9224).
11. Fishing,hunting and trapping(0912-0919).
12. Fuel dealers(5983-5989).
13. Homeless shelters,
14. Hotels and motels(7011,7021,7041 when located outside an activity center).
15. Kiosks.
16. Legal counsel and prosecution(9222).
17. Local and suburban transit(groups 4111-4121,bus stop and van pool stop only).
18. Motion picture theaters,drive-in(7833).
19. Permitted use with less than 700 square feet of gross floor area in the principal structure.
20. Police Protection(9221).
21. Public order and safety(9229).
22. Recreational vehicle dealers(5561).
23. Soup kitchens.
24. Motor freight transportation and warehousing(4225,air conditioned and mini-and self storage warehousing only).
25. Veterinary services(0741 and 0742,with outside kenneling).
26. Any other general commercial use which is comparable in nature with the foregoing list of permitted uses and consistent
with the permitted uses and purpose and intent statement of the district,as determined by the board of zoning appeals
pursuant to section 10.08.00.
E. Heavy Commercial District(C-5).In addition to the uses provided in the C-4 zoning district,the heavy commercial district(C-5)allows a range of
more intensive commercial uses and services which are generally those uses that tend to utilize outdoor space in the conduct of the business.The
C-5 district permits heavy commercial services such as full-service automotive repair,and establishments primarily engaged in construction and
specialized trade activities such as contractor offices,plumbing,heating and air conditioning services,and similar uses that typically have a need to
store construction associated equipment and supplies within an enclosed structure or have showrooms displaying the building material for which
a ! Pae 15 ly
theyspecialize.Outdoor storage yards are permitted with the requirement that such ards are comp etel enclose qelYscreeeen d.The C-5
district is permitted in accordance with the locational criteria for uses and the goals,objectives,and policies as Identified In the future land use
element of the Collier County GMP.
1. The following uses,as identified with a number from the Standard Industrial Classification Manual(1987),or as otherwi se provided for
within this section are permissible by right,or as accessory or conditional uses within the heavy commercial district(C-5).
a. Permitted uses.
1. Accounting(8721).
2. Adjustment and collection services(7322).
3. Advertising agencies(7311).
4. Advertising-miscellaneous(7319).
5. Agricultural services(0783).
6. Ancillary plants.
7. Amusement and recreation services,indoor(7999).
8. Amusement and recreation services,outdoor(7999-fishing piers and lakes operation,houseboat rental,pleasure boat
rental,operation of party fishing boats,canoe rental only).
9. Animal specialty services,except veterinary(0752,excluding outside kenneling).
10. Apparel and accessory stores(5611-5699).
11. Architectural services(8712).
12. Armature rewinding shops(7694).
13. Auctioneering/auction houses(groups 7389,5999).
14. Auditing(8721).
15. Auto and home supply stores(5531).
16. Automobile Parking.(7521).
17. Automotive dealers,not elsewhere classified(5599).
18. Automotive repair services(7532-7539).
19. Automotive services(7549).
20. Banks,credit Unions and trusts(6011-6099).
21. Barber shops(7241,except for barber schools).
22. Beauty shops(7231,except for beauty schools).
23. Boat dealers(5551).
24. Bookkeeping services(8721).
25. Bowling centers,indoor(7933).
26. Building cleaning and maintenance services(7349).
27. Building construction-General contractors and operative builders(1521-1542).
28. Business associations(8611).
29. Business consulting services(8748).
30. Business credit institutions(6153-6159).
31. Business services(7389-contractors'disbursement,directories-telephone,recording studios,swimming pool cleaning,and
textile designers only).
32. Cable and other pay television services(4841)including communications towers up to specified height,subject to section
5.05.09.
33. Carpentry and floor work contractors(1751-1752).
34. Carpet and Upholstery cleaning(7217).
35. Carwashes(7542),provided that carwashes abutting residential zoning districts shall be subject to section 5,05.11 of this
Code.
36. Churches.
37. Civic,social and fraternal associations(8641).
38. Coin-operated laundries and dry cleaning(7215).
39. Coin operated amusement devices,indoor(7993).
40. Commercial art and graphic design(7336).
41. Commercial photography(7335).
Exhibit C - Page 16 of 22
42. Commercial printing(2752,excluding newspapers).
43. Computer programming,data processing and other services(7371-7379).
44. Computer and computer software stores(5734).
45. Concrete work(1771).
46. Courts(9211).
47. Credit reporting services(7323).
48. Crematories(7261).
49. Dance studios,schools and halls,indoor(7911).
50. Department stores(5311).
51. Detective,guard and armored car service(7381,except armored car and dog rental).
52. Direct mail advertising services(7331).
53. Disinfecting and pest control services(7342).
54. Drycleaning plants(7216,nonindustrial drycleaning only).
55. Drug stores(5912).
56. Eating and drinking establishments(5812 and 5813)excluding bottle clubs.All establishments engaged in the retail sale of
alcoholic beverages for on-premise consumption are subject to the locational requirements of section 5.05.01.
57. Educational plants and public schools subject to LDC section 5.05.14.
58. Educational services(8221 and 8222).
59. Electrical and electronic repair shops(7622-7629).
60. Electrical contractors(1731).
61. Engineering services(8711).
62. Equipment rental and leasing(7359).
63. Essential services,subject to section 2,01.03.
64. Facilities support management services(8744).
65. Federal and federally-sponsored credit agencies(6111).
66. Fire protection(9224).
67. Fishing,commercial(0912-0919).
68. Food stores(groups 5411-5499).
69. Funeral services(7261).
70. Garment pressing,and agents for laundries and drycleaners(7212).
71. Gasoline service stations(5541),with services and repairs as described in section 5,05,05.
72. General merchandise stores(5331-5399).
73. Glass and glazing work(1793).
74. Glass stores(5231).
75. Golf courses,public(7992).
76. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing
homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities
pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5,05.04.
77. Hardware stores(5251).
78. Health services,offices and clinics(8011-8049).
79. Health and allied services,miscellaneous(8092-8099).
80. Heating and air-conditioning contractors(1711).
81. Heavy construction equipment rental and leasing(7353).
82. Home furniture and furnishings stores(5712-5719).
83. Home health care services(8082).
84. Hospitals(8062-8069).
85. Hotels and motels(7011,7021 and 7041)when located within an activity center.
86. Household appliance stores(5722).
87. Installation or erection of building equipment contractors(1796).
88. Insurance carriers,agents and brokers(6311-6399,6411).
89. Labor unions(8631).
Exhibit C - Page 17 of 22
90. Landscape architects,consulting and planning(0781).
91. Laundries and drycleaning,coin operated-self service(7215).
92. Laundries,family and commercial(7211).
93. Laundry and garment services,miscellaneous(7219).
94. Legal counsel and prosecution(9222).
95. Legal services(8111).
96. Libraries(8231).
97. Loan brokers(6163).
98. Local and suburban transit(4111).
99. Local passenger transportation(4119).
100 Lumber and other building materials dealers(5211).
• 101 Management services(8741,8742).
•
102 Marinas(4493 and 4499-except canal operation,cargo
. salvaging,ship dismantling,lighterage,marine salvaging,
marine wrecking,and steamship leasing),subject to section
5.05.02.
103 Masonry,stonework,tile setting and plastering contractors(1741-1743).
• 104 Medical and dental laboratories(8071 and 8072).
• 105 Medical equipment rental and leasing(7352).
•
106 Membership
. organizations,
miscellaneous(8699).
107 Membership sports and recreation clubs,indoor(7997).
•
108 Mobile home dealers(5271).
•
109 Mortgage bankers and loan correspondents(6162).
•
110 Motion picture theaters
. (7832).
111 Motor freight transportation and warehousing(4225,mini-and self-storage warehousing only).
•
112 Motor vehicle dealers,new and used(5511,5521).
•
113 Motorcycle dealers(5571).
•
114 Museums and art galleries
. (8412).
115 Musical instrument stores(5736).
•
116 Newspapers:Publishing,or publishing and printing(2711).
117 News syndicates(7383).
•
118 Nursing and professional
. care facilities(8051-
8059).
119 Outdoor advertising services(7312).
•
120 Outdoor storage yards,provided that the yard is located no closer than twenty-five(25)feet
to any public street and that such yard shall be completely enclosed,except for necessary
ingress and egress,pursuant to section 4.02.12.This provision shall not be construed to
allow,as permitted or accessory use,wrecking yards,junkyards,or yards used in whole or
part for scrap or salvage operations or for processing,storage,display,or sales of any scrap,
salvage,or secondhand building materials,junk automotive vehicles,or secondhand
automotive vehicle parts.
121 Paint stores(5231).
•
122 Painting and paper hanging(1721).
•
123 Passenger car leasing(7515).
•
124 Passenger car rental
. (7514).
Passenger transportation arrangement(4729).
Page
125 126 Periodicals:Publishing or publishing and p�l ng(2721). 18 of 22
• 127 Personal credit institutions(6141).
•
128 Personal services,
. miscellaneous(7299).
129 Personnel supply services(7361 and 7363).
• 130 Photocopying and duplicating services(7334).
•
131 Photofinishing laboratories(7384).
•
132 Photographic studios,
. portrait(7221).
133 Physical fitness facilities(7991).
• 134 Plumbing contractors(1711).
•
135 Police protection(9221).
•
136 Political organizations
. (8651).
137 Professional membership organizations(8621).
• 138 Professional sports clubs and promoters,indoor(7941).
•
139 Public administration(groups 9111-9199,9229,9311,
. 9411-9451,9511-9532,9611-9661).
140 Public or private parks and playgrounds.
• 141 Public order and safety(9229).
•
142 Public relations services(8743).
•
143 Radio,television and
. consumer electronics
stores(5731).
144 Radio,television and publishers advertising representatives(7313).
•
145 Radio and television broadcasting stations(4832 and 4833).
•
146 Real Estate(6512,6531-6552).
•
147 Record and prerecorded
. tape stores(5735).
148 Recreational vehicle dealers(5561).
149 Religious organizations(8661).
•
150 Repair shops and services,not elsewhere classified(7699).
•
151 Research,development
. and testing services(8731
-8734).
152 Retail-miscellaneous(5921-5963,5992-5999).
153 Retail nurseries,lawn and garden supply stores(5261).
•
154 Reupholstery and furniture repair(7641).
•
155 Roofing,siding and sheet
. metal work contractors
(1761).
156 Secretarial and court reporting services(7338).
•
157 Security and commodity brokers,dealer,exchanges and services(6211-6289).
•
158 Security systems services(7382).
•
159 Shoe repair shops and
. shoeshine parlors(7251).
160 Social services,individual and family(8322-8399,except homeless shelters and soup kitchens).
161 Special trade contractors,not elsewhere classified(1799).
•
162 Structural steel erection contractors(1791).
•
163 Surveying services(8713).
• Tax return preparation
services(7291).
164 165 Taxicabs(4121). Exhibit C - Page 19 of 22
166 Telegraph and other message communications(4822)
. Including communications towers up to specified height,
subject to LDC section 5.05.09.
167 Telephone communications(4812 and 4813)including communications towers up to specified height,subject to LDC section
5.05.09.
168 Theatrical producers and miscellaneous theatrical services,indoor(7922-7929,including bands,orchestras and
. entertainers;except motion picture).
169 Tour operators(4725).
• 170 Travel agencies(4724).
• 171 Truck rental and leasing,without drivers(7513).
•
172 United State Postal Service
• (4311,except major
distribution center).
173 Utility trailer and recreational vehicle rental(7519).
• 174 Veterinary services(0741 and 0742,excluding outside kenneling).
• 175 Videotape rental(7841).
•
176 Vocational schools(8243—
. 8299).
177 Wallpaper stores(5231).
178 Watch,clock and jewelry repair(7631).
•
179 Water well drilling(1781).
•
180 Welding repair(7692).
• Any use which was
181 permissible under the
prior General Retail
Commercial(GRC)zoning
district,as identified by
Zoning Ordinance adopted
October 8, 1974,and
which was lawfully existing
prior to the adoption of
this Code.
182 Any other commercial use or professional services which is comparable in nature with the foregoing uses including those
. that exclusively serve the administrative as opposed to the operational functions of a business and are purely associated
with activities conducted in an office.
183 Any other commercial or professional use which is comparable in nature with the(C-1)list of permitted uses and consistent
. with the purpose and intent statement of the district as determined by the board of zoning appeals pursuant to LDC section
10.08.00.
b. Accessory Uses.
1. Uses and structures that are accessory and incidental to the uses permitted as of right in the C-5 district.
2. Detached caretaker's residence,subject to section 5.03.05.
3. Temporary display of merchandise during business hours,provided it does not adversely affect pedestrian or vehicular traffic
or public health or safety.Merchandise storage and display is prohibited within any front yard;allowed within the side and
rear yards of lots.
c. Conditional uses.The following uses are permissible as conditional uses in the heavy commercial district(C-5),subject to the
standards and procedures established in section 10.08.00.
1. Animal specialty services,except veterinary(0752,with outdoor kenneling).
2. Amusement and recreation services,outdoor(7948,7992,7996,7999).
3. Bottle clubs.(All establishments engaged in the retail sale of alcoholic beverages for on-premise consumption are subject to
the locational requirements of section 5.05.01.)
4. Child day care services(8351),provided:
i. All areas and surfaces readily accessible to children shall be free of toxic substances and hazardous materials.This shall
include all adjacent and abutting properties lying within 500 feet 01 t'hee child care Page 20 of erty-fine.
a) For purposes of this subsection,the following definitions shall apply:
i) Hazardous materials.A material that has any of the following properties:ignitable,corrosive,reactive and/or
toxic.
II) Toxic substances.A substance which is,or is suspected to be,carcinogenic,mutagenic,teratogenic,or toxic
to human beings.
ii. It shall not be located within 500 feet of the nearest property line of land uses encompassing wholesale storage of
gasoline,liquefied petroleum,gas,oil,or other flammable liquids or gases.
iii. It shall not be located on the same street customarily utilized by construction truck traffic from asphalt plants and
excavation quarries.
iv. It shall have a minimum lot area of 20,000 square feet and a minimum lot width of 100 feet.
v. It shall provide a minimum usable open space of not less than thirty(30)percent of the total square footage of the lot
area.
vi. It shall provide that all open spaces to be used by children will be bounded by a fence of not less than five(5)feet in
height,to be constructed of wood,masonry or other approved material.
vii. It shall provide a landscape buffer in accordance with section 4,06.00.
viii. It shall comply with the State of Florida Department of Health and Rehabilitative Services Child Day Care Standards,
Florida Administrative Code.
ix. Where a child care center is proposed in conjunction with,and on the same parcel as,a facility which is a permitted
use,the requirements set forth in subparagraphs i through viii above,with the exceptions of subsections iv,and v.,shall
be used to provide the protections to children using the child care center intended by this section consistent with the
development of the proposed permitted use.
5. Communications(4812-4841)with communications towers that exceed specified height,subject to section 5.05.09.
6. Farm product raw materials(5153-5159).
7. Fuel dealers(5983-5989).
8. Homeless shelters.
9. Hotels and motels(7011,7021,7041 when located outside an activity center.)
10. Correctional institutions(group 9223).
11. Kiosks.
12. Local and suburban passenger transportation(4131-4173).
13. Motion picture theaters,drive-in(7833).
14. Permitted uses with less than 700 square feet of gross floor area in the principal structure.
15. Soup kitchens.
16. Transfer stations(4212,local refuse collection and transportation only).
17. Packing Services(4783).
18. Veterinary services(0741 &0742,with outdoor kenneling).
19. Any other heavy commercial use which is comparable in nature with the foregoing list of permitted uses and consistent with
the purpose and intent statement of the district,as determined by the board of zoning appeals pursuant to section 10.08.00.
F. Travel Trailer-Recreational Vehicle Campground District(TTRVC).
1. Purpose and intent.The provisions of this district are intended to apply to trailer lots for travel trailers,park model travel trailers and
recreational vehicles,not exceeding 500 square feet in gross floor area.Such trailer lots are intended to accommodate travel trailers,
model travel trailers,pickup coaches,motor homes,and other vehicular accommodations which are suitable for temporary habitation,
used for travel,vacation,and recreational purposes.Campsites are intended to accommodate temporary residency while camping,
vacationing or recreating,TTRVC vehicles may be permanently located on a lot;however,no person or persons may occupy said
vehicles as permanent places of residence.
2. The following uses are permissible by right,or as accessory or conditional uses within the travel trailer-recreational vehicle
campground district(TTRVC).
a. Permitted uses.
1. Travel trailers,park model travel trailers,pickup coaches,motor homes and other recreational vehicles.
b. Accessory Uses.
1. Uses and structures that are accessory and incidental to the uses permitted as of right in the TTRVC district.
2. One single-family dwelling(not a TTRVC unit)in conjunction with the operation of the TTRVC park.
-
e 21 of
3. Accessory uses and structures customarily associated with travel trailer recreational ve hicl arks inducing �reation facilit
administration buildings,service buildings including bathrooms,laundries and similar services for residents of the park,and ui
4. Accessory uses and structures customarily associated with travel trailer recreational vehicle lots,Including:
I. Enclosed utility/storage area of the same siding material and architectural style as that of the associated recreational
vehicles,not to exceed an area of sixty(60)square feet.Any utility/storage area shall be located adjacent to its
associated recreational vehicle and made a continuous part of a screened-In porch where such a porch Is attached to
the vehicle as herein provided,Where utility/storage areas are made a continuous part of a screened-in porch,the area
of the utility/storage area may not exceed 25 percent of the area of the screened-In porch or 120 square feet,whichever
lesser.The County Manager or designee may administratively approve an exception to accessory structure size
limitation where such exception is necessary to allow for accessibility,in accordance with the specifications set forth In
Section 4 of the Americans with Disabilities Act(ADA),to accommodate a physically handicapped individual.
ii. For recreational vehicles fixed by a permanent anchoring system,a screened-in porch elevated or at ground level with
a solid roof structure,architecturally compatible with its associated recreational vehicle,not to exceed an area equal
to the area of the recreational vehicle to which it is attached.Said screened-in porch shall provide for any site
utility/storage space requirements as herein provided and shall not contain any other interior walls.All such screened
enclosures must be permitted and constructed according to this Code and applicable building codes.Exterior walls may
be enclosed with screen,glass or vinyl windows,except that the storage area shall be enclosed with the same material
as the principal unit.
5. Campgrounds containing 100 spaces or more shall be permitted a convenience commercial facility no greater than 15,000
square feet in total land area.This facility shall provide for the exclusive sale of convenience Items to park patrons only,and
shall present no visible evidence of their commercial character,including signage and lighting,from any public or private
street or right-of-way external to the park.
c. Conditional uses.The following uses are permissible as conditional uses in the travel trailer recreational vehicle campground
district(TTRVC),subject to the standards and procedures established in section 10.08.00:
1. Camping cabins subject to the following standards:
i. One camping cabin per approved TTRVC lot.
ii. The maximum number of camping cabin lots in any one TTRVC park shall be ten percent of the total number of
approved TTRVC lots,not to exceed a total number of twenty(20)camping cabin lots.
iii. Maximum floor area of 220 square feet.
iv. No internal water or cooking facilities.
v. Camping cabins may not be designed as a permanent residence,however,tie-downs or other safety devices may be
used in order to provide security against high winds,
vi. Camping cabins must be constructed of natural wood materials such as logs,redwood,cedar,or cypress in order that it
may blend harmoniously into the natural landscape character normally found in a TTRVC or campground setting.
vii. The general development standards required for the TTRVC park shall be applicable to the camping cabin lots.
viii. All materials and construction must be in accordance with the Collier County Land Development Code(LDC)and the
requirements of the Florida Building Code(FBC).
ix. At least one room of the camping cabin must have a minimum of 150 square feet of floor area.
x. If camping cabins are to be located in a flood hazard zone as delineated on the most recent flood insurance rate maps
,all requirements of Section 3.02.00 of this LDC must be met.
xi. A party shall be allowed a maximum length of stay of two(2)weeks in a camping cabin.
3. P/an approval requirements.Layout plans for a TTRVC park shall be submitted to the County Manager or designee and construction
shall be in accordance with approved plans and specifications and further subject to the provisions of site development plans in
section 10.02,03.Such plans shall meet the requirements of this district and shall show,at a minimum,those items identified herein.
4. Required internal park street system.All lots/spaces within a TTRVC park shall have direct access from an internal street.All internal
streets within the district shall provide safe and convenient access to a public street.The right-of-way widths,paving widths,and other
construction standards,including gradient and alignment of all internal streets and drainage shall be subject to the standards for
development of supporting infrastructure as provided for in the subdivision regulations,in Chanter 4.For the purpose of this
subsection,internal streets shall refer to streets,including necessary right-of-way or easement,located within the confines of the
project legal description and providing no access to other land parcels.
5. Required facilities for campsites and TTRV lots.
a. Sanitary facilities,including flush toilets,and showers within 300 feet walking distance from every campsite lot and as approved by
the Collier County Health Department,or in the event of a private on-site system connection to a county system subject to county
ordinances.Lighting shall be provided in sanitary facilities at all times and the facilities shall be accessible to park residents at all
times. Exhibit C - Page 22 of 22
b. Potable water supply as approved by the Collier County Health Department and/or the director of development services pursuant
to Chapter 10.
c. A trash container such as a dumpster shall be located In areas easily accessible and not obstructed by campsites,lots or other
TTRVC lots or parking areas.
d. An enclosed space shall be open at all times wherein a portable fire extinguisher in operable condition and first aid equipment Is
available for public use.
e. One parking space per campsite or TTRV lot.
6. Sanitary waste disposal.Unless every travel trailer site has a sanitary waste outlet,a central pump-out station shall be provided.
7. Off-street parking.As required in section 4.05.00.
8. Permanent location of TTRV vehicles.TTRV vehicles Including park model,travel trailers,may be permanently located on a lot;however,
no permanent residency is allowed.
9. Compliance.Where travel trailer/park model lots are being sold to individuals,the developer/owner of the lots shall include In the title
transfer document a covenant attesting to the fact that the lot cannot be used as a place of permanent occupancy.All TTRVC parks
which commenced construction after the effective date of this district shall comply with all requirements of this district except as
further provided herein.No TTRVC park in existence on the effective date of this district shall be altered so as to provide a lesser degree
of conformity with the provisions of this district than existed on the effective date of this district.Land already zoned TTRVC which does
not meet the acreage requirements may be developed;however,the development shall conform with all other regulati ons of this
district.
Every proprietor,manager,homeowners'association,or condominium association of a TTRV park shall maintain a register of tenants
or occupants,noting the duration of the rental arrangement or length of occupancy for owner-occupied sites with respect to one or
more travel trailers or park models.Said register shall be made available upon demand to the County Manager or designee.In the
event of owner-occupied lots within the TTRVC district,said owner is responsible for registering their arrival and departure from their
recreation residence with the manager of the TTRVC park.Failure to register will hold the owner responsible for penalties as provided
herein.Failure of park owner/manager to provide said register,duly describing the persons who have occupied a travel trailer or park
model trailer,and the duration of their occupancy,shall be guilty of a misdemeanor and subject to the penalties provided by this Code.
Any proprietor or manager who maintains a falsified register to allow persons to occupy a travel trailer or park model trailer on a
permanent basis shall be similarly guilty of a misdemeanor and subject to penalties as provided in this Code.
10. Flood program requirements.All travel trailers,park model travel trailers,recreational vehicles and accessory structures shall comply
with the current Collier County Flood Damage Prevention Ordinance[Code ch.62,art.II]if permanently attached to the ground or utility
facilities.
11. Anchoring/sewer,water and electrical connections,Park model travel trailers,when positioned on a lot in this district,must be
anchored in accordance with the standards set forth in the MH district and TTRVC district and other applicable regulations,and be
connected to a public or private water and sewer system.Additionally,such units must obtain electrical service directly from the electric
utility authorized to provide such service in Collier County.
12. Building permit.A building permit shall be required for any permitted use prior to water,sewer or electric connection.
13. Signs.As required in section 5.06.00.
(Ord.No.08-11,§3.F;Ord.No.10-23,§3.F;Ord.No.14-33,§3.B;Ord.No.16-27,§3.D)
Exhibit D
Page 1of7
2.03.07-Overlay Zoning Districts
I. Bayshore Mixed Use Overlay District (BMUD). This section provides special conditions for the
properties adjacent to Bayshore Drive as identified by the designation "BMUD" on the applicable
official Collier County Zoning Atlas Map or map series.
1. Purpose and Intent. The purpose and intent of this District is to encourage revitalization of the
Bayshore Drive portion of the Bayshore Gateway Triangle Redevelopment Area with
pedestrian-oriented, interconnected projects. The Overlay encourages uses that support
pedestrian activity, including a mix of residential, civic and commercial uses that complement
each other and provide for an increased presence and integration of the cultural arts and related
support uses. When possible buildings , both commercial and residential, are located near the
street , and may have front porches and/or balconies.
2. Applicability.
a. These regulations shall apply to the Bayshore Mixed Use Overlay District as identified by
the designation "BMUD"on the applicable official Collier County Zoning Atlas Maps.
b. Planned Unit Developments (PUDs) that existed prior to March 3, 2006, and properties
with Provisional Uses (PU) approved prior to March 3, 2006, including amendments or
boundary changes to these PUDs and Provisional Use properties, are not subject to the
Bayshore Overlay District requirements.
3. Relationship to the Underlying Zoning Classification and Collier County Growth Management
Plan.
a. The purpose of the BMUD is to fulfill the goals, objectives and policies of the Collier County
Growth Management Plan (GMP), as may be amended. Specifically, the BMUD
implements the provisions of section V.F, Bayshore Gateway Triangle Redevelopment
Overlay, of the Future Land Use Element. Portions of the Bayshore Overlay District
coincide with Mixed Use Activity Center#16 designated in the Future Land Use Element
(FLUE) of the Collier County GMP. Development in the activity center is governed by
requirements of the underlying zoning district and the mixed use activity center subdistrict
requirements in the FLUE, except for site development standards as stated in section
4.02.16 of the LDC.
b. Property owners within the BMUD may establish uses, densities and intensities in
accordance with the LDC regulations of the underlying zoning classification, or may elect to
develop/redevelop under the provisions of the applicable BMUD Subdistrict. In either
instance, the BMUD site development standards as provided for in section 4.02.16 shall
apply.
4. Bayshore Mixed Use District(BMUD) Subdistricts.
a. The BMUD consists of the following subdistricts:
i. Neighborhood Commercial Subdistrict (BMUD-NC). The purpose and intent of this
subdistrict is to encourage a mix of low intensity commercial and residential uses,
including mixed use projects in a single building . This subdistrict provides for an
increased presence and integration of the cultural arts and related support uses,
including galleries, artists' studios, and live-work units . Developments will be
human-scale and pedestrian-oriented.
ii. Waterfront Subdistrict (BMUD-W). The purpose of this subdistrict is to encourage a
mix of low intensity commercial and residential uses and allow maximum use of the
waterfront for entertainment while enhancing the area for use by the general public.
Development in this subdistrict is intended to allow a mix of residential and
commercial uses including limited marina and boatyard uses.
Exhibit D
Page 2 of 7
iii. Residential Subdistrict 1 (BMUD-R1). The purpose of this subdistrict is to encourage
the development of a variety of housing types which are compatible with existing
neighborhoods and allow for building additions such as front porches. The intent in
new development is to encourage a traditional neighborhood design pattern and
create a row of residential units with uniform front yard setbacks and access to the
street.
iv. Residential Subdistrict 2 (BMUD-R2). The purpose of this subdistrict is to allow for a
variety of housing types and encourage the development of multi-family residences
as transitional uses between commercial and single-family development . The mu lti-
family buildings shall be compatible with the building patterns of traditional
neighborhood design.
v. Residential Subdistrict 3 (BMUD-R3). The purpose of this subdistrict is to allow for a
variety of housing types and encourage the development of townhouses and
single-family dwellings . All new development in this subdistrict shall be compatible
with the building patterns of traditional neighborhood design.
vi. Residential Subdistrict 4 (BMUD-R4). The purpose of this subdistrict is to protect the
character of existing neighborhoods comprised of detached single-family dwelling
units, while allowing for building additions such as front porches.
b. Use Categories and Table of Uses.
i. All uses permitted in the BMUD subdistricts have been divided into 9 general
categories, which are summarized below:
a) Residential: Premises available for long-term human habitation by means of
ownership and rental, but excluding short-term leasing or rental of less than one
month's duration.
b) Lodging: Premises available for short-term human habitation, including daily and
weekly rental.
c) Office and Service: Premises available for the transaction of general business
and the provision of services, but excluding retail sales and manufacturing,
except as a minority component.
d) Retail and Restaurant : Premises available for the commercial sale of
merchandise, prepared foods, and food and drink consumption, but excluding
manufacturing.
e) Entertainment and Recreation: Premises for the gathering of people for purposes
such as arts and culture, amusement, and recreation.
f) Manufacturing, Wholesale and Storage: Premises available for the creation,
assemblage, storage, and repair of items including their wholesale or retail sale.
g) Civic and Institutional: Premises available for organizations dedicated to religion,
education, government, social service, and other similar functions.
h) Infrastructure: Uses and structures dedicated to transportation, communication,
information, and utilities, including Essential Services .
ii. Interpretation of the Table of Uses.
a) The Table of Uses identifies uses as permitted uses (P); accessory uses (A);
conditional uses (CU), or a combination of the three. Blank cells indicate that a
use is not allowed in the corresponding subdistrict; however, such use may be
permitted by the underlying zoning designation.
b) Any use not listed in the Table of Uses is prohibited unless the County Manager
or designee may determine that it falls within the same class as a listed use
through the process outlined in LDC section 1.06.00, Rules of Interpretation.
Exhibit D
Page 3 of 7
c) Mixed Use Projects shall be limited to the permitted, accessory and conditional
uses allowed in the BMUD-NC and BMUD-W subdistricts, and subject to the
MUP approval process as outlined in Section 10.02.15. All other projects may
elect to establish uses, densities and intensities in accordance with their
underlying zoning or in accordance with the Overlay Subdistrict. However, all
projects must comply with site development standards as provided in section
4.02.16.
iii. Table of Uses.
Table 1. Table of Uses for the Bayshore Mixed Use District Subdistricts
BMUD SUBDISTRICTS
USE TYPE RESIDENTIAL MIXED ADDITIONAL STANDARDS
USE
R1 f R2 R3 R4 NC W
a)RESIDENTIAL
1) Dwelling,Single-Family PPPP P
y�1 2) Dwelling, Duplex P P P
3) Dwelling,Two-Family P P P P P
4) Dwelling, Rowhouse P P P P P
5) Dwelling, Multi-Family(3 or more) P P P P P
___ __ *If allowed by underlying
6) Dwelling, Mobile Home P*
zoning
7) Home Occupations A A A A A A 5.02.03
i f
8) Live-Work Units CU P P 4.02.16 C.6.
9)Artist Village CU CU CU P P 4.02.16 C.3.
b)LODGING
1) Bed & Breakfast Facilities CU CU CU 4.02.16 C.4.
Exhibit D
Page 4 of 7
2) Hotels and Motels P P
c)OFFICE/SERVICE
1) Banks,Credit Unions, Financial Services P
2) Business Support Services P P
3) Child Care Services CU CU CU CU CU
4)Community Service Organization P P
5) Drive Thru Service (banks)
6)Government Services ( P P
7) Family Care Facility/Nursing Home P P
8) Medical Services-Doctor Office P P
9) Medical Services-Outpatient/Urgent
Care
10) Personal Care Services P P
11) Post Office P P
12) Professional Office or Service P P
13) Rental Services-Equipment/Vehicles P P
14)Studio-Art, Dance, Martial Arts, P P
Music
15)Studio-Motion Picture CU
16)Vehicle Services- Maintenance/Repair
17)Veterinarians Office P P
Exhibit D
Page 5 of 7
18)Video Rental p p
d)RETAIL/RESTAURANTS
1)Auto Parts Sales
2) Bars/Tavern/Night Club P P
3)Drive Thru Retail/Restaurant
4) Gas Station with Convenience Store P P 5.05.05
{
5) Neighborhood Retail-<2,000 sf P P
r-
6) General Retail-<15,000 sf P P
r
7) General Retail->15,000 sf CU CU
8) Restaurant P P
9)Shopping Center CU CU
10)Vehicle/Boat/Heavy Equipment Sales CU 4.02.16 C.7.
e)ENTERTAINMENT/RECREATION
1) Gallery/Museum P P
2) Meeting Facility P P
3) Cultural or Community Facility P P
4)Theater, Live Performance P P
5)Theater, Movie CU CU
6) Recreation Facility, Indoor P P
7) Recreation Facility, Outdoor CU CU
Exhibit D
Page 6 of 7
Amusements, Indoor P P
9)Amusements, Outdoor CU CU
10)Community Garden PP PP P P 4.02.16 C.5.
f)MANUFACTURING/WHOLESALE/STORAGE
1) Laboratory-Medical,analytical, P
research
2) Laundries and Dry Cleaning P
3) Media Production P
4) Metal Products Fabrication P
5) Mini-Warehouses
6) Repair Shops P P
7) Research and Development P P
8) Storage-Outdoor A 4.02.16 C.9.
9)Storage-Warehouse
g)CIVIC INSTITUTIONAL
1) College/University P P
2) Educational Plant PPPP P P
3) Hospital
4) Membership Organizations P P
5) Public Safety Facility CU CU
6) Religious Institution CU CU CU CU CU CU
Exhibit D
Page 7of7
7) Schools- Elementary and Secondary
8) Schools -Vocational and Technical
h)INFRASTRUCTURE
1)Automobile Parking Facilities CU
2) Boat Launch A
3) Essential Services PPPP P P
4) Marinas and Boatyards P P 4.02.16 C.7.
5)Transit Station
6) Wireless Telecommunication Facility
Note: The Table of Uses identifies uses as permitted uses (P); accessory uses (A); conditional uses
(CU), or a combination of the three.
Blank cells indicate that a use is not allowed in the corresponding subdistrict; however, such use may be
permitted by the underlying zoning designation.
Mixed Use Projects shall be limited to the permitted, accessory and conditional uses allowed in the
BMUD-NC and BMUD-W subdistricts, and subject to the MUP approval process as outlined in section
10.02.15. All other projects may elect to establish uses, densities and intensities in accordance with their
underlying zoning or in accordance with the Overlay Subdistrict. However, all projects must comply with
site development standards as provided in section 4.02.16.
Exhibit E
Description for 2082: Malt Beverages
Division D: Manufacturing j Major Group 20: Food And Kindred Products
Industry Group 208: Beverages
2082 Malt Beverages
Establishments primarily engaged in manufacturing malt beverages. Establishments primarily engaged in bottling
purchased malt beverages are classified in Industry 5181.
• Ale
• Beer (alcoholic beverage)
• Breweries
• Brewers'grain
• Liquors, malt
• Malt extract, liquors, and syrups
• Near beer
• Porter(alcoholic beverage)
• Stout (alcoholic beverage)
Description for 5813: Drinking Places (alcoholic Beverages)
Division G: Retail Trade ( Major Group 58: Eating And Drinking Places
Industry Group 581: Eating And Drinking Places
5813 Drinking Places (alcoholic Beverages)
Establishments primarily engaged in the retail sale of alcoholic drinks, such as beer, ale, wine, and liquor, for
consumption on the premises. The sale of food frequently accounts for a substantial portion of the receipts of these
establishments.
• Bars (alcoholic beverage drinking places)
• Beer gardens (drinking places)
• Beer parlors (tap rooms)
• Beer taverns
• Beer, wine, and liquors: sale for on-premise consumption
• Bottle clubs (drinking places)
• Cabarets
• Cocktail lounges
• Discotheques, alcoholic beverage
• Drinking places, alcoholic beverages
• Night clubs
• Saloons (drinking places)
• Tap rooms (drinking places)
• Taverns (drinking places)
• Wine bars
Exhibit F
Page 1 of 3
Notice of Official Interpretation
of
Collier County Land Development Code Ordinance
Pursuant to Section 10.03.06.P of the Collier County Land Development Code (I,DC), public
notice is hereby given of an official interpretation.
RE: INTP-2017-PL-1233, OFFICIAL INTERPRETATION REQUESTING THE COLLIER
COUNTY ZONING DIRECTOR DETERMINE WHETHER THE "INDUSTRIAL
MANUFACTURING OF BEER IS A PRINCIPAL, ACCESSORY OR CONDITIONAL USE
THAT CAN OCCUR WITHIN THE COMERCIAL-4 /BAYSHORE DRIVE MIXED USE
OVERLAY DISTRICT NEIGHBORHOOD COMMERCIAL ZONING DISTRICT(C-4/HVILD
NC)
The Collier County Zoning Director has been requested to render an official interpretation for the
Commercial-4Bayshore Mixed Use Overlay Neighborhood Commercial zoning district of the
Land Development Code and if the industrial manufacturing of beer is allowed as a permitted,
accessory or conditional use.
Allowable uses within the underlying C-4 zoning area are listed within LDC Section 2.03.07 D
and are of three types (as defined within LDC 1.08.00):
Accessory use or structure. A use or structure located on the same lot or parcel and incidental
and subordinate to the principal use or structure.
Conditional use. A use that, due to special circumstances, is not permissible in a zoning district,
but may be appropriate if controlled as to number, area, location, or relation to the neighborhood.
Principal building, structure,or use. The main or primary use on a lot or parcel,or the building in
which the main or primary use is housed or carried out.
Within the request for the Official Interpretation,you raise two points:
1. "That industrial manufacturing of beer and related uses with site
work as described on the Exhibit "A"cover letter as filed by the Property Owner
with its Site Improvement Plan Application is not a permitted use of the
Property";and
2. "That"industrial manufacturing of beer"is not a principal,accessory;or
conditional use that can occur on the Property."
Exhibit F
Page 2 of 3
Essentially both questions are asking the same, "is industrial manufacturing of beer", allowed
within the Commercial-4/Bayshore Mixed Use Overlay Neighborhood Commercial zoning
district.
The first point is directly related to a 2015 Site Improvement Plan (PL20150002675), associated
with property at 3555 and 3557 Bayshore Road, which read, "The above referenced project
consists of a 6,000 SF building renovation for industrial manufacturing of beer and related uses,
with site work." This project description was submitted within the 2015 SIP submittal.
Subsequently the project description associated with the SIP was revised to read, "The above
referenced project consists of a 6,000 square foot building for a lounge with microbrewery, with
site work."
Regardless of the revised narrative associated with the SIP,your Official Interpretation focuses on
the question, "is industrial manufacturing of beer allowed on the property and within the
C4/BMUD-NC zoning district?"
The industrial manufacturing of beer,more typically known as a brewery(SIC 2082)as a principal
use is in fact an industrial use that is not allowable as a principal or conditional use within eitherthe
underlying C-4 zoning district or the BMUD- NC overlay district. As noted earlier within this
official interpretation, within each zoning district there are permitted uses, conditional uses and
accessory uses. The allowance of a microbrewery (on-site brewing of beer) associated with a
proposed drinking establishment or in this instance beer garden,is an accessory use that is directly
related to the principal use. The beer produced within the establishment will be for on-site
consumption and incidental and subordinate to the primary use on the property. The subordinate
relationship is reflected in the square footage allocations of the facility. Within the approved SIP
(PL20150002675), 3,845 sq. ft. of the 6,000 total sq. ft. is proposed drinking
establishment/drinking area or 57 percent of the structure; and 2,585 sq. ft. is dedicated to the
microbrewery. Any percentage less than fifty percent qualifies as subordinate, but this is not the
only test. The subordinate use must also be directly related to the primary use of the property. In
this instance the microbrewery is directly intertwined with the beer garden as a source of the
establishment's main product of sale(beer).
As noted within this official interpretation, the zoning district appropriate for a brewery is
Industrial Zoning. This is based upon the size, scope, scale and intensity of such facilities, often
associated with large scale production capacities, demands upon utility infrastructure and
distribution capability.
A traffic analysis dated July 13, 2016 was completed by TR Transportation Consultants, Inc.
Review of the trip generation associated with the beer garden and accessory microbrewery stated
that the drinking area would generate 44 P.M.peak hour trips and the microbrewery would produce
3 P.M. peak hour trips, or six(6)percent of the total P.M.peak hour trips. The projected trip split
further suggests that the microbrewery is subordinate to the overall operation. Additionally, the
2,585 square feet of the facility dedicated to the microbrewery use is of a scale that limits the
external influence of the microbrewing activities to the subject site,with little to no external effect
upon surrounding land uses.
Exhibit F
Page 3of3
Finally, to ensure that the production of beer is primarily for the operation of the brew garden, a
condition of approval required of this Official Interpretation is that the sales of onsite consumption
must be maintained at a minimum percentage of 51 percent of total sales and that the establishment
shall provide documentation of percentage of sales on an annual basis to the Growth Management
Department. This reporting requirement will ensure the primary use of the property is maintained.
It should be noted that the property in question received a zoning verification letter dated October
2, 2015, prior to the SIP submittal, to clarify if a lounge with accessory microbrewery was a use
provided for on the property.
Within 30 days of publication of the public notice, any affected property owner or aggrieved or
adversely affected party may appeal the interpretation to the Board of Zoning Appeals(BZA). An
affected property owner is defined as an owner of property within 300 feet of the property lines of
the land for which the interpretation is effective. An aggrieved or adversely affected party is
defined as any person or group of persons which will suffer an adverse effect to an interest
protected or furthered by the Collier County Growth Management Plan or Land Development
Code. A request for appeal must be filed in writing and must state the basis for the appeal and
include any pertinent information, exhibits, or other back-up information in support of the appeal.
The appeal must be accompanied by a$1,000.00 application and processing fee. (If payment is in
the form of a check, it should be made out to the Collier County Board of Commissioners.) An
appeal can be hand delivered or mailed to my attention at the address provided. Please do not
hesitate to contact me should you have any further questions on this matter.
The interpretation file and other pertinent information including the Zoning Verification Letter,
Site Improvement Plan, and Traffic Analysis related to this interpretation are kept on file and may
be reviewed at the Growth Management Division,Planning and Regulation building at 2800 North
Horseshoe Drive,Naples, FL 34104. Please contact the staff member below at(239)252-6819 to
setup an appointment if you wish to review the file.
Mike Bosi,AICP, Director,
Planning and Zoning Department
Exhibit G
Pagel of3
Narrative
For Appeal of INTP-2017-PL-1233
Background
Ank Crafts, LLC a/k/a ANKROLAB BREWING COMPANY (the "Brewing Company"), having
a Business Mailing Address 3555 Bayshore Drive, Naples, Florida 34113, filed a Site
Improvement Plan application on or about July 21, 2016 for a project consisting of"a 6,000 SF
bld. renovation for industrial manufacturing of beer and related uses, with site work." "Industrial
manufacturing of beer", known as a brewery, is an industrial use falling under the SIC code of SIC
2082 (See, Exhibit "D" to the 01 Application as hereinafter defined).
The Brewing Company's Site Improvement Plan application is known as the Bayshore Brew
Garden-PL20150002675 ("Site Improvement Application"). Additionally,on June 12, 2017,the
Brewing Company filed an application for a building permit under PRBD20170622946 to"convert
existing commercial building to a brewery and lounge" (the "Building Permit Application"). As
of the date hereof, the Building Permit Application has been rejected by Collier County, Florida,
and we understand that all proceedings and work pertaining to the Building Permit Application
have been stayed pursuant to Sec. 250-59, Laws of Fla. Ch. 67-1246, §17 (the Site Improvement
Application and Building Permit Application are collectively referred to herein as the "Project").
The address and parcel numbers for the Project are 3555 &3557 Bayshore Drive&Parcel Number:
618413200001 (the "Property").
We represent 3570 Bayshore Drive, LLC (the "3570 Bayshore Drive"), the owner of parcels of
improved, commercial property, including valuable parking area, located in the C-4 zoned
Bayshore Drive Mixed Use Overlay District-Neighborhood Commercial Sub-district ("BMUD-
NC) directly across the street from the Property owned by the Brewing Company.
The Property has a Collier County, Florida Future Land Use Map("FLUM") Element Designation
of Urban, Mixed Use District, Urban Coastal Fringe Subdistrict and is further located in the
Bayshore/Gateway Triangle Redevelopment Overlay. Allowable uses within the Urban, Mixed
Use District, Urban Coastal Fringe Subdistrict designation of the Future Land Use Map and the
Bayshore/Gateway Triangle Redevelopment Overlay do not include industrial manufacturing of
beer or any other types of industrial uses whatsoever. In fact, in the Urban Designation of the
FLUM, Industrial uses are only permitted in the Urban, Industrial District and in the Urban
Commercial District, certain quadrants of Interchange Activity Centers. See,for example, the
Collier County Future Land Use Element, Future Land Use Designation Description Section, I.
Urban Designation, b. 14.
Consistent with the Comprehensive Plan, the Property has a zoning designation of General
Commercial District(C-4)and is further located in the Bayshore Drive Mixed Use Overlay District
- Neighborhood Commercial Sub-district ("BMUD-NC) as confirmed by the Collier County
Zoning Map(See, Exhibit"C"as attached to the 01 Application). The underlying C-4 zoning uses
for the Property are listed in Section 2.03.07 D of the County's LDC, and the LDC incorporates
Exhibit G
Page 2of3
numerical references, that are defined within the"Standard Industrial Classification (SIC) Manual
— 1987", in identifying and listing allowable zoning uses.
"Industrial manufacturing of beer", known as a brewery having SIC code 2082, is not listed as a
principal, conditional or accessory use in either the General Commercial District (C-4) or the
Bayshore Drive Mixed Use Overlay District — Neighborhood Commercial Sub-district ("BMUD-
NC), and the Property is not and cannot be zoned industrial. See, Section 2.02.03 of the Collier
County Land Development Code. Further, the purpose and intent of the C-4 district is to provide
the opportunity for the most diverse types of commercial activities, not industrial activities
permitted under industrial zoning. See, Section 2.03.03 of the Collier County Land Development
Code.
Although not disclosed by the Brewing Company in any of the Project documents provided to the
County or its staff, 3570 Bayshore Drive has confirmed with the Brewing Company that they seek
to manufacture beer on the Property for off-site distribution,sales and consumption,as well as on-
site consumption.
En view of the Project and the foregoing, 3570 Bayshore Drive filed an application for Official
Interpretation ("01 Application") on March 24, 2017 seeking confirmation from the Director of
the Collier County Planning and Zoning Department that: (i)"industrial manufacturing of beer and
related uses with site work" is not a permitted use of the Property, and (ii) "industrial
manufacturing of beer" is not a principal, accessory or conditional use that can occur on the
Property.
On August 10, 2017 and in response to the 01 Application, a public Notice of Official
Interpretation was issued ("INTP-2017-PL-1233").
INTP-2017-PL-1233 gives the following opinions/interpretations (among others):
(i) Industrial manufacturing of beer, more typically known as a brewery (SIC code
2082) is an industrial use that is not allowable as a principal or conditional use
within either the underlying C-4 zoning district or the BMUD-NC overlay district;
(ii) That the brewery or a microbrewery is allowed as an accessory use to the proposed
drinking establishment (or in this instance beer garden).
(iii) The beer produced within the Property will be for on-site consumption and
incidental and subordinate to the primary use, drinking establishment, on the
Property.
a. The subordinate relationship is evidenced by the % of building square footage
dedicated for drinking establishment use vs the brewery.
b. The subordinate relationship is evidenced by a traffic analysis showing that the
brewery would generate 6 percent of the total P.M. peak hour trips.
c. The subordinate brewery use is directly related to the drinking establishment as
the brewery is directly intertwined with the beer garden as a source of the
establishment's main product of sale(beer).
d. That a condition of approval, required for INTP-2017-PL-1233, is that "sales
of onsite consumption must be maintained at a minimum percentage of 51
Exhibit G
Page 3of3
percent of total sales and that the establishment shall provide documentation of
percentage of sales on an annual basis to the Growth Management Department."
Appeal
On September 6, 2017, 3570 Bayshore Drive filed an appeal of INTP-2017-1233. In connection
with the same, 3570 Bayshore Drive requests that INTP-2017-1233 be modified and amended as
necessary to confirm the following:
(i) The Property has a Collier County, Florida Future Land Use Map ("FLUM")
Element Designation of Urban, Mixed Use District, Urban Coastal Fringe
Subdistrict and is further located in the Bayshore/Gateway Triangle
Redevelopment Overlay. Allowable uses within the Urban, Mixed Use District,
Urban Coastal Fringe Subdistrict designation of the Future Land Use Map and the
Bayshore/Gateway Triangle Redevelopment Overlay do not include industrial
manufacturing of beer or any other types of industrial uses whatsoever. Further, in
the Urban Designation of the FLUM, industrial uses are only permitted in the
Urban, Industrial District and in the Urban Commercial District, certain quadrants
of Interchange Activity Centers.
(ii) Industrial manufacturing of beer, more typically known as a brewery (SIC code
2082) is an industrial use that is not permitted on the Property and is not permitted
as a principal, conditional or accessory use on the Property.
Alternatively, and in the event it is determined that a brewery or a microbrewery is allowed as an
accessory use to the proposed drinking establishment, 3570 Bayshore Drive requests that INTP-
2017-1233 be modified and amended as necessary to confirm the following:
(i) The beer produced or manufactured within the Property shall not be for oft-site
distribution, sales and consumption and shall be manufactured for on-site
consumption only and incidental and subordinate to the drinking establishment use
on the Property.
a. That a condition of approval, required for INTP-2017-PL-1233 (as amended),
is that "beer produced or manufactured on the Property shall: (i) not be for off-
site distribution, sales and/or consumption, and (ii) be manufactured/used for
on-site consumption only."
An accessory use must be both incidental and subordinate to the principal use. See,Section 1.08.02
of the LDC. A brewery is not a permitted type of accessory use on the commercially zoned
Property. Further,it is not incidental and subordinate to the drinking establishment.3570 Bayshore
Drive disputes the percentage of building square footage dedicated for drinking establishment use
vs the brewery as stated in INTP-2017-PL-1233.The intensity of this industrial/manufacturing use
is fully incompatible with the commercial use C-4 zoning, even as an accessory and incidental use
to any other permitted C-4 use. INTP-2017-PL-1233 establishes dangerous precedent that goes
well beyond the Property in how it will be applied in the future. In a nutshell, the Brewing
Company cannot improperly seek to re-classify a principal use as an accessory use to subvert and
undermine Collier County's Comprehensive Plan and LDC.