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02 - Basis of Appeal - Prepared BASIS OF APPEAL This is an appeal of a staff determination that there is a Floor Area Ratio ("F.A.R.") applicable to a proposed hotel to be constructed to be constructed on an approximately two(2)acre parcel located within the Bayshore/Gateway Triangle Redevelopment Overlay("Overlay"). The denial letter being appealed is attached hereto as Exhibit"A". SUMMARY OF ARGUMENT: permitted as CU outside of AC The Overlay was established to encourage redevelopment of prop within the Overlay. The purpose of the Overlay was to incentivize development opportunities and ow greater densities and intensities than allowed on the properties in the Overlay prior to the adopti of the Overlay. Prior to adoption of the Overlay,hotel uses were not permitted on C-4 property within the Overlay that was not within an activity center. The subject propel is.zoned C-4 and f not within an activity center. Therefbor , a hotel u e is rmitfn but con i io a p r i e C n itiona not a permitted use under a existing zoning or the property. It is through the establishment of the section 1 of if desnity is inc Overlay that the hotel use became permitted on the subject property. The Overlay provides for the LDC and as a dev.std than development standards for all development within the Overlay. There is no need to look outside of the conflicts this is not true. para of ord Overlay to determine development standards for hotel use in the Overly. Staff has never applied the F: r require standard to this property. In fact, Staff approved multiple Site Development Pl... _ . or a hotel looking to without ever applying an FAR standard. It was not until a ne.• .•• ..•- e s to a revision to a previously LDC approved SDP that Staff elected to a..1 •- s andard. The application of the FAR standard is it does via contrary to the stated inti r at the Overlay which was adopted to provide incentives to spur height, uses redevelopment. The FAR standard limits redevelopment of the property as a hotel because it artificially and mixe use reduces the area eligible for hotel rooms even though the site complies with all other development density standards applicable to the Overlay including, but not limited to height, setbacks, lot coverage and parking. only as mixed use THE OVERLAY WAS ESTABLISHED TO ALLOW GREATER INTENSITY& DEVELOPMENT OPPORTUNITY The Bayshore/Gateway Triangle Redevelopment Overlay, the GTMUD-MXD, Mixed Use Projects is there any (MUPs) and the, mini-triangle catalyst site were established to foster redevelopment, incentivize discussion or development opportunities and allow greater densities and intensities. The GTMUD is intended to language provide greater intensity as supported by the GMP, LDC, and the Community Redevelopment Agency's that hotel FAR says the does ("CRA's")scope of work associated with the mini-triangle catalyst site. not apply...esp since this was a. GMP intent language: a downzone? Policy 5.6.F."Bayshore/Gateway Triangle Redevelopment Overlay The Bayshore/Gateway Triangle Redevelopment Overlay, depicted on the Future Land Use Map, is within the boundaries of the Bayshore/Gateway Triangle Redevelopment Plan adopted by the Board of County Commissioners on June 13, 2000. 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 th. verlay allows for additional neighborhood added for the MINI commercial uses and increased intensit and higher residential densities that will subdistrict promote the assembly of property, or Joint ventures between property owners, while providing interconnections between properties and neighborhoods.The intent of this Overlay is to allow for more intense development in an urban area where urban services are available. Two zoning overlays have been adopted into the Collier County 1 Land Development Code to aid in the implementation of this Overlay. The following provisions and restrictions apply to this Overlay: ...." See Attachment"1". b. LDC intent language: LDC Sec 2.03.07.N.4.a "The Gateway Triangle Mixed Use District consists of the following subdistricts: i. Mixed Use Subdistrict(GTMUD-MXD). The purpose and intent of this subdistrict is to provide for pedestrian-oriented commercial and mixed-use developments and higher density residential uses. the underlying zoning C-4 does not allow R, Developments will reflect traditional neighborhood design building so the overlay does patterns. Individual buildings are encouraged to be multi- story with uses mixed vertically, with street level commercial and upper level office and residential. Included in this District is the "mini triangle" formed by US 41 on the South, Davis Boulevard on the North and Commercial Drive on the East, which is intended to serve as an entry statement for the Bayshore Gateway Triangle CRA and a gateway to the City of Naples. ..." See Attachment"2". c. Catalyst site intent: The attached Mini-Triangle Catalyst Project document was provided by David Jackson (prior CRA Director) as guidance for work RWA conducted on the Bayshore Gateway Triangle Redevelopment Overlay, and the catalyst site plans developed for the mini- triangle and Kelly Lake properties. As stated in Attachment 3: "Mini-Triangle Catalyst Project: then consultant Intended as a higher density Mixed-Use Project,with focus on Hotel,Retail,Restaurants failed to do their and potential for condominium uses. Maximize buildout potential and utilize structured job parking. CRA staff felt concepts included in the original Redevelopment Plan did not provide sufficient density/footprint size. Potential to make the tip of the triangle (intersection of Davis and US 41)a strong focal point." The subject property is located within the Mini-Triangle Catalyst area. This request is to build a hotel. LACK OF A HOTEL F.A.R. WAS NOT AN OVERSIGHT a. Assuming that omission of the FAR in the GTMUD-MXD was an oversight and that the C-4 Hotel FAR should apply is illogical, since this reasoning is inconsistent with the stated intents in the GMP and LDC. where atrdjltow is it inconsistent? required by ordinance b. Assuming that when an overlay is silent on a given standard, the County will revert back to the base zoning is inconsistent with common zoning practices and the evidence within those overlays. The Hotel and Motel use was intentionally added to the overlay as part of a list of uses found in Table 2 of LDC Sec 2.03.07. Other uses within that table contain without any change to the FAR 2 correct,and it should have. "additional standards;" the Hotel and Motel use does not. Should we then assume that That is under BMUD R-3, all uses without additional standards are subject to oversights and that we can revert to which was formerly MH,VR& base zoning or other code sections as we please? The answer is clearly no. As evidence, RMF-6(which does not the "Dwelling, Mobile Home" use contains the following additional standard "*If allow MH) permitted by the underlying zoning,"No other use allowed in the GTMUD contains this exception which demonstrates that the underlying zoning standards do not apply unless specifically stated. c. It is common practice to administer the LDC based on the development standards setforth If the FAR was to in an Overlay within the LDC. It cannot be assumed that the lack of an FAR was an be removed,then oversight unless evidence supports that assessment. There is no evidence that the County language should intended that an FAR apply to the hotel use being added to the permitted uses within the be in the overlay indicating this change Overlay. Unlike group housing, which has a LDC section dedicated to the development standards applicable to group housing, no such general development standard applies to are you saying hotels. Accordingly, there is no specific section in the LDC that adopts development that FAR is not standards for hotels. In this case, it is the Overlay that permits a hotel to be developed on no C-4 allowed a dev.std? the property. It is the Overlay development staithrds that apply to development on the it as a CU" property, not a portion of the C-4 zoning district standards that are not the basis for the hotel to be built in the first place.so the LDC has a separate section for dev stds and another for zoning stds d. RWA developed the GTMUD and BMUD Overlays. At that time, Patrick Vanasse led but NEVER the RWA team that worked on the overlay. Mr. Vanasse clearly recalls that the team mentioned this intentionallyremoved barriers to redevelopment and drafted the overlaywithout a Hotel in any public p meetings? FAR in order to allow more intensity and to encourage hotel development within the but if his arguement mini-triangle area. The team intentionally allowed more intensity in the mixed use was valid,then the subdistrict to foster redevelopment of the mini-triangle and make it attractive for a hotel lack of FAR goes far and corporate offices to be built within the mini-triangle catalyst site. beyond Mlni e. Not requiring an FAR for the GTMUD district was intentional and is consistent with the GMP, and LDC Sections that outline the intent of the overlay, as well as the scope of should an FAR NOT work provided by the CRA. Should a Hotel FAR have been desired,specificity would be desired,same have been provided on how to calculate and administer this reeulation. As staff knows, issues applying a Hotel FAR requirement to a mixed-use project is very complicated. By the very nature of a project being horizontally or vertically integrated, it is difficult to discern what should be counted toward the hotel use versus the rest of the commercial uses that have no FAR. CONSISTENCY WITH GMP which is why As commonly accepted in the planning and zoning profession, the GMP supersedes the LDC. more R density and height are The GMP clearly states that the intent of the Bayshore/Gateway Triangle Redevelopment Overlay allowed and is to"allow more intense develo•ment"per Policy 5.6 F. Furthermore,it states, "This overlay PUD's allows for additional neighborhood commercial uses and increased intensity and higher residential densities...." added due to MPUD 3 Use in combination with R,additional height,and not CU If you apply the C-4 Hotel FAR to the overlay, then the intensity for Hotel uses is not increased, and therefore, inconsistent with the GMP. The overlay's intent is clearly to increase intensity; therefore,having no FAR limit within the overlay is consistent with the stated intent. THE BAYSHORE GATEWAY TRIANGLE OVERLAY SUPERSEDES C-4 BASE ZONING but disclosed a. The notion of an overlay superseding base zoning is consistent with planning and zoning best practices. Overlays in Collier County and other jurisdictions typically supersede or supplement existing restrictions, rights and/or privileges for a certain geographic area Yes,but new intensities governed by the subject overlay. It is common practice for CRAs to use overlays to are spelled out-RLSA as example and look encourage and stimulate redevelopment by allowing greater densities and intensities,thus at the IMAP current allowing greater development opportunity through more flexible development standards. process b. GMP Policy 5.6.F.1 states that for Mixed Use Developments like Gateway Naples "a mix of residential uses is permitted. For such development uses are limited to Cl-through C- 3 zoning district uses, except as otherwise provided for in the Mini Triangle Subdistrict; hotel/motel use; theatrical producers (except motion picture), bands, orchestras, and yes it is. entertainers; and, uses as may be allowed by applicable FLUE Policies." The hotel use the overlay is a is not permitted on the property under the C-4 zoning designation. It is the overlay that is downzone and allowing for the development of the hotel. As such, C-4 limitations identified under hotels were added Section 4.02.1 do not apply. Hotel uses within the Overlay district are therefore strictly as an incentive regulated by Section 4.02.16 Design Standards for Development in the Overlay whichand intensity allowance intentionally does not contain an FAR limitation. c. LDC Sec 4.02.1 (Attachment "4") which provides a development standards table for various commercial zoning districts contains a row for Overlay Districts that states, "See does not say table of special design requirements applicable to overlay district." This clause zoning requirments acknowledges that the overlays provide separate and more specific regulations, which as not according to the a result supersede base zoning district standards and have primacy over base zoning ordinance enacting this design requirements. LDC Section 4.02.16 (Attachment "5") contains the development the LDC standard for the Overlay. This Section does not include the FAR now being imposed by Staff. d. LDC Sec 2.03.07 (Attachment "2") pertaining to Overlay Districts makes it clear that while densities and uses can be established according to the base zoning district or the overlay that"in either instance the GTMUD site development standards as provided for in section 4.02.16 shall apply." Therefore, the BCC specifically and intentional) where is it p Y Yeven discussed? had the CCPC or BCC determined that the development standards in Section 4.02.16 at the LDC apply to intended not to have it development in the Overlay. Had the BCC intended to establish a FAR for hotels, it apply there would have would have included such a requirement in Section 4.02.16 of the LDC. Section 4.02.16 been language to reflect that,otherwise the conflict of the LDC contains very detailed development standards for projects within the Overlay. language prevails. To somehow imply that you must look to the C-4 zoning standards to determine that a FAR applies is not supported by the actual detail in the LDC. not only is it supported by the LDC, but also by the conflict clause in the actual ordinance. 4 e. LDC Section 10.02.15 Requirements for Mixed Use Projects within the Bayshore Gateway Triangle Redevelopment Area states the following: "A. Mixed Use Project Approval Types. Owners of property located in the Bayshore Gateway Triangle Redevelopment Area designated as Neighborhood Commercial (BMUD-NC), Waterfront (BMUD-W), and Mixed Use (GTMUD-MXD) Subdistricts may submit an application for a Mixed Use Project (MUP). The MUP shall allow for a mixture of residential and commercial uses, as permitted under the Table of Uses for the appropriate subdistrict. Applications for a MUP may be approved administratively or through a public hearing process as described in this section. A pre- application meeting is required for all MUP applications. 1. Administrative Approval: a. MUPs may be approved administratively provided they meet the following conditions: i. The MUP complies with all site development standards as outlined in section 4.02.16 of the LDC; and where silent the LDC is still ii. The MUP only includes permitted uses as outlined by then applicable the Table of Uses for the subdistrict in which it is with 4.02.16 located; and iii. The MUP does not seek additional density through the Bonus Density Pool provisions of LDC section 10.02.15 C. b. The Administrative Code shall establish the submittal requirements for MUP administrative approval. The application shall follow the applicable submittal requirements and procedures for site development plan submittal and review. ..." It should be noted that Sec 10.02.15 makes it very clear that Sec 4.02.16 applies to MUPs, not Sec. 4.02.01. Moreover, the clause states that MUPs can only include uses outlined in the Table of Uses for that subdistrict. That would negate the ability to revert back to Sec 4.02.01 and apply the C-4 Hotel FAR. (see Attachment"6") STAFF DETERMINED IN WRITING THAT THE FAR DOES NOT APPLY not the zoning director The attached email from Chris Scott (Attachment "7") dated June 6, 2018, states "The FAR requirements for hotels in a C-4 district would not apply to projects in the Bayshore Gateway Triangle, as the development standards 4.02.16 would supersede the base zoning."This determination is consistent with the findings detailed in this report. In addition, this property has received multiple SDP review. As can be seen in Composite Attachment 8, the County at no time required the hotel to meet a FAR threshold. In fact,as can be seen in Attachment 9, because staff accepted the 26/unit cap as on the plans 5 The staff reviewer was the same who decided the FAR does not apply,even though this exceeds his authority. the FAR threshold not being applied by Staff was exceeded when it approved the revise SDP to increase the number of hotel rooms to 48 from 12. Wrong,staff accepted 2.05.01.A.3 at 26 UPA CONCLUSION: The Overlay was established to encourage redevelopment of property within the Overlay. The purpose of the Overlay was to incentivize development opportunities and allow greater densities and intensities than but was a allowed on the properties in the Overlay prior to the adoption of the Overlay. Prior to adoption of the downzone? Overlay,hotel uses were not permitted on C-4 property within the Overlay that was not within an activity center. The subject property is zoned C-4 and is not within an activity center. Therefore, a hotel use is not a permitted use under the existing zoning for the property. It is through the establishment of the Overlay that the hotel use became permitted on the subject property. The Overlay provides for the development standards for all development within the Overlay. There is no need to look outside of the Overlay to determine development standards for hotel use in the Overly. Staff has never applied the FAR standard to this property. In fact, Staff approved multiple Site Development Plans (SDP's) for a hotel without ever applying an FAR standard. It was not until a neighbor objected to a revision to a previously approved SDP that Staff elected to apply the FAR standard. The application of the FAR standard is contrary to the stated intent that the Overlay which was adopted to provide incentives to spur redevelopment. The FAR standard limits redevelopment of the property as a hotel because it artificially reduces the area eligible for hotel rooms even though the site complies with all other development standards applicable to the Overlay including, but not limited to height, setbacks, lot coverage and parking. ATTACHMENTS: 1. GMP Policy 5.6.F.Bayshore/Gateway Triangle Redevelopment Overlay 2. LDC Section 2.03.07 Overlay Zoning Districts 3. Mini-Triangle Catalyst Project—scope of work from CRA 4. LDC Section 4.02.01 Dimensional Standards for Principal Uses in Base Zoning Districts 5. LDC Section 4.02.16 Design Standards for Development in the Bayshore Gateway Triangle Redevelopment Area 6. LDC Section 10.02.15 Requirements for Development in the Bayshore Gateway Triangle Redevelopment Area 7. Email from Chris Scott to Patrick Vanasse dates June 6,2018 8. SDP Approval Letters 9. SDP Approving 48 Unit Hotel 6