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HEX Final Decision 2021-12Page 1 of 5 HEX NO. 2021-12 HEARING EXAMINER DECISION DATE OF HEARING. February 25, 2021 PETITION. PETITION NO. PL202000001934 ABW - Bayshore Wine and Food Venue-The applicant requests that the Hearing Examiner consider a minimum distance waiver pursuant to Section 5.05.01.A.6. of the Land Development Code for an establishment to be known as the Bayshore Wine and Food Venue that seeks to sell alcohol for consumption on-site with a minimum separation distance of less than 500 feet from an existing establishment whose primary function is the sale of alcoholic beverages for consumption on -site and two churches. GENERAL PURPOSE FOR THE PETITION. Request to waive the required minimum separation distance of 500 feet from churches (houses of worship) and waive the required minimum separation distance of 500 feet from establishments that sell alcohol for on-site consumption and derive less than fifty-one percent of its sales from food items for the proposed Bayshore Wine and Food Venue. The existing establishments within 500 feet are: ESTABLISHMENT LOCATION DISTANCE Celebration Food Truck Park Unit 12105 100.3 feet Revelation Church of Jesus Christ of the Apostolic 2740 Bayshore Drive 311.7 feet Iglesio del Evangelio de Cristo 2727 Bayshore Drive 281.5 feet STAFF RECOMMENDATION. Approval with conditions. FINDINGS. 1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Art. III, Div. 3 of the Collier County of Ordinances, Section 5.05.01.A.6. of the Land Development Code, and Chapter 9 of the County Administrative Code. 2. The public hearing for this Petition was properly noticed and conducted in accordance with all County and state requirements. Page 2 of 5 3. The public hearing was conducted electronically and in-person in accordance with Emergency/Executive Order 2020-04. 4. The Petitioner and/or Petitioner’s representative executed the Hybrid Virtual Quasi-Judicial Public Hearing Waiver related to conducting the public hearing electronically and in-person. 5. County planning staff presented their report and recommendation, Petitioner and/or Petitioner’s representative presented the Petition, followed by public comment, and rebuttal by Petitioner and/or Petitioner’s representative. 6. Several members of the public submitted testimony and written comments in opposition to the Petition; however, none of the establishments within the 500” distance objected. Most objections pertained to the existing Celebration Food Truck Park. 7. The proposed establishment is in the Bayshore Gateway Triangle Community Redevelopment Area. 8. The Board of Zoning Appeals (BZA) is referenced in 5.05.01.A.6 but “Alcohol Distance Waiver” is listed in Chapter 9 (Office of the Hearing Examiner) of the County Administrative Code. The “factors” upon which the Hearing Examiner shall base the decision on are listed in 5.05.01.A.6:1 a. The nature and type of natural or manmade boundary, structure, or other feature lying between the proposed establishment and an existing school, childcare center, public library, church, public park, or public playground which is determined by the BZA to lessen the need for the total 500-foot distance requirement. Such boundary, structure, or other feature may include, but is not limited to, lakes, marshes, nondevelopable wetlands, designated preserve areas, canals, and major rights-of-way. The record clearly reflects that all but one existing establishment (The Iglesio del Evangelio de Cristo church at 2727 Bayshore Drive) is separated by a major right- of-way (Bayshore Drive). b. The paths of vehicular and pedestrian traffic which could be taken between the alcoholic beverage establishment and the school, childcare center, public library, church, public park, or public playground. The record reflects that the pedestrian travel distance to the two existing houses of worship is greater than 500 feet. The existing alcoholic beverage establishment is located directly across Bayshore Drive at the Celebration Food Truck Park. Testimony and the County staff report support the belief that patrons at both locations would walk across Bayshore Drive (four houses) to go to both locations while using the onsite parking for one or the other. Testimony reflects that there is an existing cross walk near both establishments for traversing Bayshore Drive. 1 The Hearing Examiner’s findings are italicized. Page 3 of 5 c. The hours of operation and the noise and light which could potentially be generated from the premises selling alcoholic beverages. The testimony (oral and written) from the public focus mostly on disruption caused by the existing food truck park located across Bayshore Drive from the Petition location, and that an additional alcoholic beverage establishment will intensify the situation. Most complaints related to noise (amplified music) and overflow parking into the neighborhood adjacent to the food truck park, particularly during special events there. Testimony reflects that the owner of the food truck park and the subject Petition is the same owner. The petitioner has offered to limit outdoor amplified music to the hours of 11:00 a.m. to 10:00 p.m. on Friday and Saturday, and 11:00 a.m. to 9:00 p.m. on Sunday through Thursday. ANALYSIS. Based on a review of the record including the Petition, application, exhibits, the County’s staff report, and hearing comments and testimony from the Petitioner and/or the Petitioner’s representative(s), County staff and that given by the public, the Hearing Examiner finds that there is enough competent, substantial evidence as applied to the factors set forth in Section 5.05.01.A.6. of the Land Development Code to approve the Petition. The second and third factors require attention. It is almost certain that combined, the existing food truck establishment and the future venue described in the Petition, will intensify pedestrian activity across Bayshore Drive and the amplified music. Combined, both will draw more traffic and more patrons. Care must be taken for pedestrian safety and controlling the music amplification. While Bayshore Drive lessens the need for the 500 feet separation, it also requires attention to pedestrian safety. The design of the future venue illustrates an open area and outdoor stage on the east side abutting an existing residential area. The Petitioner should take every step possible to redesign the location of the stage and/or the stage itself away from the residential area. Perhaps cover the stage and not allow musicians to use their own amplification system. The venue can instead install its own system, allowing for better management. The Petitioner should establish buffers to ameliorate noise and light disturbance into the residential area. DECISION. The Hearing Examiner hereby APPROVES Petition Number ABW-PL20200001934 filed by Robert J. Mulhere, FAICP of Hole Montes, Inc. and Maddox & Partners, LLC representing Naples 3.0 Holdings, Inc., with respect to the property as described as the east side of Bayshore Drive between Weeks Avenue and Becca Avenue in Section 11, Township 50 South, Range 25 East, Collier County, Florida for the following: • A minimum distance waiver for an establishment to be known as the Bayshore Wine and Food Venue that seeks to sell alcohol for consumption onsite with a minimum separation distance of less than 500 feet from an existing establishment whose primary function is the sale of alcoholic beverages for consumption on-site and two churches. Page 4 of 5 Said changes are fully described in the Venue Aerial Separation Exhibit attached as Exhibit "A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A – Venue Aerial Separation Exhibit LEGAL DESCRIPTION. The east side of Bayshore Drive between Weeks Avenue and Becca Avenue in Section 11, Township 50 South, Range 25 East, Collier County, Florida. CONDITIONS. 1. All other applicable state or federal permits must be obtained before commencement of the development. 2. Outdoor amplified music shall be limited to the hours of 11:00 a.m. to 10:00 p.m. on Friday and Saturday, and 11:00 a.m. to 9:00 p.m. on Sunday through Thursday. 3. Fully ensure pedestrian safety crossing Bayshore Drive to the greatest extent feasible. 4. Take protective steps to prevent music amplification intrusion into the abutting residential neighborhood. DISCLAIMER. Pursuant to Section 125.022(5) F.S., issuance of a development permit by a county does not in any way create any rights on the part of the applicant to obtain a permit from a state or federal agency and does not create any liability on the part of the county for issuance of the permit if the applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. 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 Commissioners 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. id.2...;Z...tr----- March 19, 2021 Date Andrew Dickman,Esq., AICP Hearing Examiner Page 5 of 5 EXHIBIT “A” T.B.R.107109899BSBSBSBSBSBSBSBSBSBSBSBSBSBSBSBSBSBS<<<<<<<<<<<<<<<<<<<<SRSRSRSRSRSRSRSRSRSRSRSRSRSRSRSRSRSRSRSR<< < <<<<<<<<<<<<SRSRSRSRSRSR<<<SRSRSRSRBSSRSRSRSRSRSRBSBSBSBSBS<<<<SRSRSRSRSRSRSRSR<<100.3' BAYSHORE DRIVE (PUBLIC R.O.W.) LAKESIDE DRIVEBECCA AVENUE (PUBLIC R.O.W.)WEEKS AVENUE (PUBLIC R.O.W.)ZONING:C4-BMUD-NCZONING: R.O.W.ZONING:C4-BMUD-NC=21,1*0+%08'51CELEBRATIONPARKBAYSHORE FOODAND WINE VENUECELEBRATION PARKPARKING311.7'281.5'REVELATION CHURCH OF JESUSCHRIST OF THE APOSTOLICIGLESIO DELEVANGELIO DE CRISTOBAYSHORE FOOD AND WINEVENUE AERIAL EXHIBITAGNOLIBARBER&BRUNDAG E ,I NC.NKMD 02001002008.5x11 SCALE: 1" = 200'