HEX-trio-Appeal-3-29-19ADA-PL20190000305
STAFF REPORT
TO: COLLIER COUNTY HEARING EXAMINER
FROM: ZONING DIVISION – ZONING SERVICES SECTION
GROWTH MANAGEMENT DEPARTMENT
HEARING DATE: May 13, 2019
SUBJECT: ADA-PL20190000305 - GATEWAY/TRIANGLE- APPEAL
PURPOSE AND DESCRIPTION: The Appellant’s request is to seek reversal of the denial of an
Insubstantial Change (SDPI) to PL20180002049 based upon the application failing to address the outstanding
zoning comment requesting that the SDPI include a floor area ratio (FAR) calculation for the hotel portion of
the mixed-use project.
Per the Collier County Code of Laws and Ordinances, Section 2-87, the Hearing Examiner (HEX) shall review
the record of action and to determine if any part of the administrative decision was inconsistent with existing
Land Development Code (LDC) and the C-4/GTMUD-MXD (Gateway Triangle Mixed Use District-Mixed
Use Subdistrict) zoning districts. The section states that the HEX must consider:
a. The criteria for the type of application being requested;
b. Testimony from the applicant; and
c. Testimony from any members of the public.
The appeal petition is focused specifically on the claims raised by the Appellant as they relate to the denial of
the Insubstantial Change requested by staff. The issue here is whether the denial of PL20180002049, as
rendered by the Growth Management Department (the administrative decision) was consistent with the
existing Land Development Code and the C-4/GTMUD-MXD (Gateway Triangle Mixed Use District-Mixed
Use Subdistrict) zoning districts.
Should the HEX determine that the Insubstantial Change request denial is contrary to the Land Development
Code and the C-4/GTMUD-MXD (Gateway Triangle Mixed Use District-Mixed Use Subdistrict) zoning
districts, the HEX may overturn the administrative decision. Should the HEX find none of the above, the HEX
shall accept the administrative denial of the Plan.
SUBJECT PROPERTY: The appeal is focused upon property located at 1705 and 1807 Tamiami
Trail East (Parcels No. 00386880009 & 00386840007), Naples, FL, 34112 (Overview provided for
on following page)
ADA-PL20190000305
ADA-PL20190000305
APPELLANT’S CLAIMS:
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:
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
allowed on the properties in the Overlay prior to the adoption 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 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.
THE OVERLAY WAS ESTABLISHED TO ALLOW GREATER INTENSITY & DEVELOPMENT
OPPORTUNITY
The Bayshore/Gateway Triangle Redevelopment Overlay, the GTMUD-MXD, Mixed Use Projects (MUPs)
and the, mini-triangle catalyst site were established to foster redevelopment, incentivize development
opportunities and allow greater densities and intensities. The GTMUD is intended to provide greater
intensity as supported by the GMP, LDC, and the Community Redevelopment Agency’s (“CRA’s”) scope
of work associated with the mini-triangle catalyst site.
a. GMP intent language:
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 this urban area. This Overlay allows for additional neighborhood commercial uses
and increased intensity and higher residential densities that will 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
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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. Developments will reflect traditional neighborhood design building 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:
Intended as a higher density Mixed-Use Project, with focus on Hotel, Retail, Restaurants and potential
for condominium uses. Maximize buildout potential and utilize structured 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
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.
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 additional standards;” the Hotel and Motel use does
not. Should we then assume that all uses without additional standards are subject to oversights and
that we can revert to base zoning or other code sections as we please? The answer is clearly no. As
evidence, the “Dwelling, Mobile Home” use contains the following additional standard “*If 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.
It is common practice to administer the LDC based on the development standards set forth in an Overlay
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within the LDC. It cannot be assumed that the lack of an FAR was an oversight unless evidence supports
that assessment. There is no evidence that the County intended that an FAR apply to the hotel use being
added to the permitted uses within the 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 hotels. Accordingly, there is no specific section in the LDC that adopts development
standards for hotels. In this case, it is the Overlay that permits a hotel to be developed on the property.
It is the Overlay development standards that apply to development on the 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.
RWA developed the GTMUD and BMUD Overlays. At that time, Patrick Vanasse led the RWA team that
worked on the overlay. Mr. Vanasse clearly recalls that the team intentionally removed barriers to
redevelopment and drafted the overlay without a Hotel FAR in order to allow more intensity and to
encourage hotel development within the mini-triangle area. The team intentionally allowed more
intensity in the mixed use subdistrict to foster redevelopment of the mini-triangle and make it attractive
for a hotel and corporate offices to be built within the mini-triangle catalyst site.
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 work provided by the CRA. Should
a Hotel FAR have been desired, specificity would have been provided on how to calculate and
administer this regulation. As staff knows, 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
As commonly accepted in the planning and zoning profession, the GMP supersedes the LDC. The GMP
clearly states that the intent of the Bayshore/Gateway Triangle Redevelopment Overlay is to “allow
more intense development” per Policy 5.6 F. Furthermore, it states, “This overlay allows for additional
neighborhood commercial uses and increased intensity and higher residential densities….”
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
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 governed by the subject
overlay. It is common practice for CRAs to use overlays to encourage and stimulate redevelopment by
allowing greater densities and intensities, thus allowing greater development opportunity through more
flexible development standards.
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 C1-through C- 3
zoning district uses, except as otherwise provided for in the Mini Triangle Subdistrict;
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hotel/motel use; theatrical producers (except motion picture), bands, orchestras, and
entertainers; and, uses as may be allowed by applicable FLUE Policies.” The hotel use is not
permitted on the property under the C-4 zoning designation. It is the overlay that is allowing for
the development of the hotel. As such, C-4 limitations identified under Section 4.02.1 do not
apply. Hotel uses within the Overlay district are therefore strictly regulated by Section 4.02.16
Design Standards for Development in the Overlay which 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 table of
special design requirements applicable to overlay district.” This clause acknowledges that the
overlays provide separate and more specific regulations, which as a result supersede base
zoning district standards and have primacy over base zoning design requirements. LDC Section
4.02.16 (Attachment “5”) contains the development 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 intentionally determined that the development
standards in Section 4.02.16 at the LDC apply to development in the Overlay. Had the BCC
intended to establish a FAR for hotels, it would have included such a requirement in Section
4.02.16 of the LDC. Section 4.02.16 of the LDC contains very detailed development standards
for projects within the Overlay. 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.
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;
ii. The MUP only includes permitted uses as outlined by the Table of Uses for the subdistrict in
which it is 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. …”
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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
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, 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.
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 allowed on the properties in the Overlay prior to the adoption 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 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.
County’s Position:
The zoning for the property is C-4/GTMUD-MXD. The GTMUD zoning overlay requires
development to meet the Overlay development standards of 4.02.16, which does not include a
FAR requirement for hotels or any other measure that controls the overall size of a hotel. The
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underlying C-4 zoning district does limit the development of a hotel to a Floor Area Ratio (FAR)
of 0.6.
While the overlay does not provide a FAR, units per acre, or alternative standard to control the
amount/intensity of hotel that can be built, the past precedent for interpretation of the LDC would
not suggest that the amount of hotel that can be built in the Overlay is unlimited, but rather the
FAR requirement for hotels within the C-4 zoning designation would be the most restrictive and
should apply.
This interpretation is based upon LDC Section 1.03.01 D. , which reads: “In the interpretation
and application of any provision of these regulations, it shall be held to be the minimum
requirement adopted for the promotion of the public health, safety, comfort, convenience, and
general welfare. Where any provision of these regulations, the GMP, or any other law or
regulation in effect in Collier County, Florida, imposes greater restrictions upon the subject
matter than any other provision of these regulations, the GMP, or any other law or regulation
in effect in jollier County, Florida, the provision imposing the greater restriction or regulation
shall be deemed to be controlling.”
Additionally, Ordinance 14-33, which amended LDC Section 4.02.16, Design Standards for
Development in the Bayshore Gateway Triangle Redevelopment Area, contains a Conflict and
Severability provision which reads: “In the event that any provisions of this Ordinance should
result in an unresolved conflict with the provisions of the Land Development Code (LDC) or
Growth Management Plan (GMP), the applicable provisions of the LDC or GMP shall prevail.
In the event this Ordinance conflicts with any other Ordinance of Collier County or other
applicable law, the more restrictive shall apply.”
Based upon these factors, the FAR standard of 0.6 for hotels expressed in the C-4 zoning district
is considered the more restrictive regulation and shall apply to this project. This interpretation
also applies to the previously approved SDPA- PL20170002293. The SDPA did not include FAR
calculations; therefore, any subsequent building permit submittal will be required to demonstrate
that the hotel portion of the development complies with the FAR requirement prior to permit
approval.
Additionally, the LDC Section 1.03.01.D was an adopted regulation at the time of the adoption
of Section 4.02.16, with this recognition if the overlay district intended to truly be the only zoning
district within the LDC that allowed hotels with no limitations to the intensity of a hotel, it would
have specifically stated as such, or the provision of 1.03.01.D would apply to lack of specific
direction contained in 4.02.16. This fact is further advanced by the specifics of the language
within the adopting Ordinance for Section 4.02.16, which provides for the more restrictive
language being applicable, the very issue the HEX is being requested to review.
Additionally, LDC Section 2.03.07.I states, “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.” The provision states
that a property owner can develop uses and intensities within the underlying zoning or under the provisions of
the applicable BMUD and in either instance the site development standards as provided for in the 4.02.16 shall
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apply. In review of 4.02.16, there are no applicable development standards that address hotels. The appellant’s
argument, that the lack of standards was intentional and therefore, the intensity of a hotel is unregulated is not
supported by the existing guidance of 1.03.01.D and further questioned by LDC Section 2.03.07.I.4.b.iii,
which provides for the table of uses for the Bayshore Mixed Use subdistricts. Within that specific table
(portion provided below), the first column provides for the use type and the last column provides for additional
standards. Under the use type, “Lodging”, the first entry for Bed and Breakfast has a reference to 4.02.16.C.4,
as additional standards for the use, informing the reader to look to the section for modifications to how the
LDC address that use. The second entry under the “Lodging” does not provide a reference to the 4.02.16. It
is staff’s opinion that this lack of reference to the section for Hotels indicates that the section does not modify
the manner in which the LDC addresses the intensity of the use and creates a conflict with the applicable
development standards or intensity for a hotel. The LDC is clear, when the language of the LDC creates a
conflict, the more restrictive regulation should apply.
It should be noted that Development Review Staff and the Zoning Director did discuss whether a FAR
ration should apply to the project and based upon the reading of the GMP language for the Bayshore
Community Redevelopment Area, which states higher intensities should be expected in the overlay, 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. It was at a
subsequent staff level discussion that the interpretation section of the LDC Section (1,03.01.D) was
highlighted to include not only conflicting provisions of the LDC, but also the GMP; and when there was
conflict, the determining factor was the more restrictive provision and not the document with regulator y
authority. This unique distinction was the key factor in Staff’s determination that the more restric tive
provision of the C-4 zoning district and the FAR, which controls hotel intensity, was controlling and thus
applicable to the project.
The arguments presented by the appellant, while persuasive, are characterized by staff as circumstantial,
in that the LDC does not specifically state that a hotel developed in the BMUD has no intensity
restrictions, as all other zoning districts in the LDC provide, but rather that the absence of standard s in
4.02.16 related to hotels was intentional, and the fact that the overlay provides for higher intensities by
nature of the overlay being constructed for Community Redevelopment Area (CRA) supports this
position, then the conclusion must be that the Overlay was intentionally silent to a hotel’s intensity in the
Overlay and therefore there are no intensity restrictions imposed upon a hotel within the Bayshore
overlay. While the arguments do infer that conclusion, Staff is relying upon the direct evidence of LDC
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Section 1.03.01.D., which states that when there is conflict within provisions of the LDC and GMP, the
more restrictive shall apply.
Ultimately, the final arbiter of this appeal will be the Board of Zoning Appeals and based upon the nature
of this issue, it is Staff’s opinion that it is inappropriate fo r Staff to arrive upon a determination that
provides for higher intensity of a land use, when there is clear conflicting regulations within the LDC and
GMP related to that use, and that the guidance provided by the LDC is to side on the more restrictive
position and allow the Board of County Commissioners, acting as the Board of Zoning Appeals to provide
the policy determination on intensity.
GROWTH MANAGEMENT IMPACT: The areas addressed within the appeal are contained within
the LDC, therefore no impact to the Growth Management Plan.
COUNTY ATTORNEY OFFICE REVIEW:
This Staff Report was reviewed by the County Attorney’s office on.
RECOMMENDATION: For the HEX to affirm the administrative denial of SDPI-PL20180002049 and
determine that based upon the direction for interpretation provided for in LDC Section 1.03.01 D., the
FAR of .6 provided for in the Commercial -4 zoning district is applicable to the project.
Prepared by:
________________________________________ ______________________
MIKE BOSI, AICP, DIRECTOR DATE
ZONING DIVISION