Reply - London HEX Appeal PL20190000305
Gateway/Triangle(ADA)
Petitioner's Reply
INTRODUCTION
Petitioner's Site Development Plan Insubstantial Change ("SPDI") was approved by county staff.
Subsequently, the SDPI was retroactively rescinded by county staff for an alleged failure to address the
floor area ratio ("FAR") of the hotel component of a mixed-use building located within the Bayshore
Triangle Redevelopment Overlay("Overlay").
The county's sole argument to support its novel position that the FAR applies to the hotel component is
that (a) there is a conflict over whether the FAR applies and, (b) in the event of a conflict, the more
restrictive regulation applies,citing Section 1.03.01,Paragraph D,of the Land Development Code("LDC").
The county also references Ordinance 14-33,"which amended LDC Section 4.02.16,Design Standards for
Development in the Bayshore Gateway Triangle Redevelopment Area"(Staff Report prepared by M Bosi
dated March 29, 2019 at page 8)in support of its defense.
As will be explained below,the county's claim that a conflict exists is not supported by the facts,the LDC
or the Growth Management Plan("GMP").
IF A CONFLICT EXISTS,THE GMP PREVAILS
It is well settled that the GMP is the controlling document for all land use regulations. The county admits
that the SDPI was approved—without imposing an FAR—because the SDPI is consistent with the GMP:
Staff originally concluded that no limitations on a hotels intensity, as suggested by the silence of
LDC section 4.02.16, should prevail. This was based upon the recognition that the GMP is the
controlling document which establish the legal nexus for the regulations contained in the Collier
County LDC.Staff Report prepared by M. Bosi dated March 29, 2019 at page 9.
To defend its reformed understanding of its own regulations,the county now contends that,notwithstanding
the consistency of the SDPI with the GMP, the SDPI is not consistent with the LDC. The county alleges
that silence as to whether the FAR applies in the Overlay creates a conflict, and, relying on Section
1.03.01.D of the LDC,argues that this conflict requires the county to impose the"more restrictive"standard.
In citing Section 1.03.01.D to explain that conflicts are resolved in favor of the more restrictive provision,
the county conveniently ignores the other Paragraphs under the same Section of the LDC.
Paragraph A of Section 1.03.01 mandates that in any event construction of the LDC must be consistent with
the intent of the Board of County Commissioners as expressed in the GMP. See LDC 1.03.01.A. In other
words,even if there is a purported conflict between provisions in the LDC,the more restrictive regulation
is not the default.
Paragraph C of Section 1.03.01 requires that all provisions of the LDC be"liberally construed in order that
the true intent and meaning of the BCC may be fully carried out" (emphasis added). Each section of the
LDC must be interpreted in the context of the intention of the legislature and the objective of the regulations.
A narrow interpretation to fit staff's narrative is clearly inconsistent with this directive.
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Moreover, as the county acknowledges "the GMP is the controlling document which establishes the legal
nexus for regulations contained in the Collier County LDC"(StaffReport prepared by M Bosi dated March
29, 2019 at page 9),Paragraph E of Section 1.03.01 establishes that all regulations are subject to the GMP:
In all circumstances, the provisions of these regulations shall be interpreted and construed to be
consistent with the GMP. Where any provision(s) of these regulations are determined to be in
conflict with the GMP,the GMP shall control.See LDC 1.03.01.E.
The Board of County Commissioners clearly expressed their intent to stimulate development within the
Overlay "by providing incentives that will encourage the private sector to invest in the urban area". See
GMP Policy 5.6.F. Therefore,the Overlay"allow(s)for more intense development in an urban area where
urban services are available"(emphasis added). Id. Staff admits that"higher intensities should be expected
in the Overlay". Staff Report prepared by M. Bosi dated March 29, 2019.
The county's own rules of construction and interpretation obligate the county to administer the LDC to
achieve the policies of the GMP. The SDPI promotes GMP Policy 5.6.F by proposing a mixed-use
development, integrated vertically in a single building with a greater height and a higher intensity of
commercial uses than permitted by the underlying C-4 Zoning District.
The Board of County Commissioners reinforced its intent in 2014 by adopting Ordinance 14-33. See
Schedule 1. Ordinance 14-33 is an amendment to the LDC in an amendment cycle, where the legislature
takes a hard look at the LDC from a comprehensive perspective.
In the Ordinance, the Board of County Commissioners revisited the development standards in the Overlay
and specifically amended Section 4.02.16 to add architectural standards. Had the Board of County
Commissioners deemed the FAR an appropriate standard for development in the Overlay, it had every
opportunity to impose it as part of the amendment to Section 4.02.16. The Board of County Commissioners
also reviewed the base zoning district development standards Tables (Table 2 and Table 2.1, addressed
below) as part of the amendment cycle. At the time of review in 2014, the Tables, explicitly, did not
administer the development standards of the Overlay. The Board of County Commissioners concluded
that the Overlays must continue to be governed by their own development standards.
The Board of County Commissioners has spoken,through the express language of the GMP and the LDC,
and has reinforced its intent on multiple occasions that the Overlay standards,not the base district standards,
apply.
NO CONFLICT EXISTS—OVERLAY STANDARDS GOVERN
With that being said,this level of analysis regarding intent of the legislature is necessary only if there is an
actual conflict between regulations resulting in ambiguity over which applies. The language of the LDC
speaks for itself and there is no conflict between regulations and therefore no ambiguity.
The county's Answer contends that Section 2.03.07(I), Table 1 ("Table of Uses for the Bayshore Mixed
Use Subdistrict")is a source of ambiguity. This Table establishes which uses are permitted in the Overlay.
Indeed, this is the very Table that allows for development of a hotel on the subject property as a matter of
right where the underlying C-4 Zoning District does not.
The use Table also contains a column labelled "Additional Standards" to unambiguously impose
development standards and limitations on specific uses that are in addition to the Overlay standards. Under
the use type "gas stations with convenience store", for example, the reader sees the use is permitted in the
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mixed-use subdistrict of the Overlay. The reader also sees that a gas station developed in the Overlay is
subject to LDC Section 5.05.05. Section 5.05.05 otherwise regulates all gas stations.
Table 1. Table of Uses for the Bayshore Mixed Use District Subdistricts
BMUD SUBDISTRICTS
USE TYPE RESIDENTIAL MIXED USE ADDITIONAL STANDARDS
R1 R2 R3 R4 NC W
d)RETAIL/RESTAURANTS
4) Gas Station
with Convenience f P IP 5.05.05
Store
The intentional reference to Section 5.05.05 means the legislature knew that,without subjecting gas stations
in the Overlay to Section 5.05.05,the additional standard would not apply.
On the other hand, when the reader looks at the Table of Uses under the hotel use, there is no LDC cross-
reference cited for additional standards. The reader understands that a hotel must comply with the standards
of the Overlay, without limitation. Had the Board of County Commissioners intended to impose a FAR.,
it would simply have added that condition in the table or referred to the development standards of another
section of the LDC,like it did for gas stations and bed and breakfast facilities.
BMUD SUBDISTRICTS
USE TYPE RESIDENTIAL MIXED USE ADDITIONAL STANDARDS
R1 R2 R3 R4 NC W.
b)LODGING
1)Bed&
Breakfast CU CU CU 4.02 16 C.4.
Facilities
2)Hotels and
Motels P P
Moreover,the footnote to the use Table clearly states that the Overlay standards govern:
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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. (emphasis added).
The language of this provision could not be clearer or simpler. Any reader understands that they look to
4.02.16,the Overlay standards,when developing a project in the Overlay
The standards in Section 4.02.16 do not impose a FAR. Instead, Section 4.02.16 imposes Overlay
restrictions on development, including parking, height and setbacks. These Overlay standards address
county's inaccurate allegation that"there arc no intensity restrictions imposed upon a hotel" (Staff Report
prepared by M Bosi dated March 29, 2019 at page 9) in the Overlay, while at the same time enabling
developers with distinct standards to incentivize development and investment in the Overlay,in furtherance
of Policy 5.6 of the GMP.
If the reader is left with any question as to whether additional standards apply, in reviewing the site
development standards for"Principal Uses in Base Zoning Districts" (as set forth under Section 4.02.01,
Table 2,of the LDC),the foundation relied upon by the county for imposition of a FAR,the reader confirms
that the base zoning district standards do not apply in the Overlay district.
Table 2.Building Dimension Standards for Principal Uses in Base Zoning Districts.
Maximum Minimum Minimum Floor Area of Floor Area
Zoning District Building Distance Buildings Ratio
Height Between (square feet) (%)
(feet) Buildings
__..Hotels .60.m ._..
C-4 75 A 700 (ground floor)
Destination resort.80
Overlay Districts See table of special design requirements applicable to overlay districts.
Similarly,the setback table for the base zoning districts informs the reader that setbacks applicable in the
Overlay are not found in the Section 4.02.01 but in the special Overlay section of chapter 4.
Table 2.1 -TABLE OF MINIMUM YARD REQUIREMENTS (SETBACKS) FOR BASE
ZONING DISTRICTS
Minimum
Zoning Public School
Front Yard Minimum Side Yard (feet) Minimum Rear Yard (feet)
district (feet) Requirements
C-4 4 d 25 a 25 a x
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Overlay See table of special design requirements for the applicable overlay district located in the
Districts appropriate section for that district in chapter 4.
The Tables unequivocally tell the reader not to use the base zoning district standards if the project is in the
Overlay. The Tables categorically tell the reader to go to a separate subsection of Chapter 4 of the LDC to
find the governing standards, which, in the case of the SDPI, are set forth in Section 4.02.16. Section
4.02.16 does not impose a FAR.
CONCLUSION
Petitioner relied on the plain language of the LDC in developing its plans for its initial site development
plan application in 2015, in its site development plan amendment in 2017, and in its SDPI in 2018. Each
of Petitioner's submittals accordingly complied with the Overlay standards. At no time in the four(4)year
history of the project did the county raise an objection based on FAR. Of course,the exact opposite is true.
The county has issued an approval for each version of the site plan,none of which incorporated a FAR.
It was not until the contract purchaser of the adjacent parcel,owned by the Collier County Redevelopment
Agency, objected to the approval of the SDPI that a FAR requirement was imposed. The approval of the
SDPI will apparently have a significant impact on the contract purchaser's ability to develop a hotel on the
adjacent site owned by the Collier County Redevelopment Agency.
The SDPI was approved because it is consistent with the GMP and the LDC. There simply is no conflict
between LDC regulations. With every opportunity, the legislature redirects the reader from the base
dimensional standards to the Overlay standards.
Even if there were a conflict, the LDC must be implemented liberally to effectuate the GMP. The GMP
calls for greater intensity in the Overlay. Application of FAR would decrease intensity in the Overlay.
In summary,the Overlay standards clearly govern and the base zoning district standards do not apply. The
SDPI complies with the LDC and the GMP. The August 30,2018 approval should be reinstated.
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SCHEDULE 1
Ordinance 14-33
[see separate attachment]
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