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Agenda 10/12/2021 Item #12A (Isles of Capri Food Truck Park)10/12/2021 EXECUTIVE SUMMARY Recommendation that the Board accept without comment four motions filed by the owner of the proposed Isles of Capri Food Truck Park and either (1) move directly to hearing the three publicly noticed appeals, or (2) remand the appeals to the Hearing Examiner. _____________________________________________________________________________________ OBJECTIVE: To dispose of four motions filed by the owner of the proposed Isles of Capri Food Truck Park. CONSIDERATIONS: This Executive Summary is solely a vessel to present four motions filed by the Property Owner to the Board. A copy of the motions and reply papers is attached as back-up to this agenda item. As back-up, the motions are now preserved in the record for each of the appeals. The owner of the proposed Food Truck Site, Paul M. Grider and Tametha Grider, as Trustees of the Grider Revocable Living Trust, has filed four motions relating to this matter. Briefly identified, they are: 1. That the BZA dismiss this appeal for the Neighboring Property Owner’s failure to allege facts establishing standing to appeal SDP PL20200001903. 2. That the BZA finds that it lacks jurisdiction over Appeal PL20210002121 and remand it to the Hearing Examiner, as the Neighboring Property Owner’s appeal of the OI is preempted to the Hearing Examiner by Code § 2-87.6 and the Administrative Code. 3. That the BZA finds that it lacks jurisdiction over Appeal PL20210001944 and remand it to the Hearing Examiner, as the Neighboring Property Owner’s appeal of the SDP is also preempted to the Hearing Examiner pursuant to Code § 2-87.6 and the Administrative Code. 4. That the Board find (a) the Trust’s Zoning Verification Letter ZLTR-PL20200001955 (the “Trust Zoning Verification”) issued on October 26, 2020, is a binding and valid determination that a Food Truck Park is a permitted use, and accordingly, (b) the BZA cannot retroactively apply FCC’s or its Appeal of OI PL20210000943 to the SDP approval for the Trust’s Food Truck Park. The County Attorney would like to address two issues. 1. The Board has both the jurisdiction to hear the three appeals and the discretion to remand the appeals to the Hearing Examiner. The Property Owner’s position is that the Board does not have the jurisdiction to hear these appeals but must remand the matter to the Hearing Examiner. The Neighboring Property Owner expressly noticed its appeals to the BZA. Given the difference of opinion between the two parties as to who should hear this, the County Attorney elected to consolidate the three appeals and take them to the Board based on (1) the nature of this matter, and (2) the following provision set forth in the 1967 Special Act, as amended by the Florida Legislature in 2001: Sec. 250-56. - Same-Powers and duties. (a) Boards of zoning appeals or the governing body acting as a board of zoning appeals in the event it so elects, shall have the following powers and duties: (1) To hear and decide administrative appeals where it is alleged there is error in any order, requirement, decision, interpretation or determination made by an administrative official in 12.A Packet Pg. 269 10/12/2021 the enforcement of any zoning ordinance or regulation adopted pursuant to this Act. (b) No administrative appeal shall be considered by a board of zoning appeals or the governing body acting as a board of zoning appeals except after public hearing with due public notice. (Laws of Fla. ch. 67-1246, § 14; Laws of Fla. ch. 2001 -344, § 1) The County Attorney and former Deputy County Manager Nick Casalanguida recommended to the Board the creation of the Hearing Examiner for the purpose of expediting and reducing the costs of applications involving minor land use changes that were non-controversial and bordered on the ministerial. It was the intent that matters that merited full public hearings before the Board of Zoning Appeals could still be heard by the BZA under the original jurisdiction of the Special Act. Note that when the Special Act was amended in 2001 to create the potential for a Hearing Examiner, the above- cited provision providing the Board with jurisdiction to hear appeals was expressly retained. While the Board has the jurisdiction to hear the three appeals, the Hearing Examiner Ordinance provides the Board with the discretion to remand these appeals to the Hearing Examiner if the Board so chooses: 5. The Board of County Commissioners, by majority vote, may remand any advertised public hearing involving a development order to the Hearing Examiner for the sole purpose of opining on a legal or technical land use issue rai sed during the hearing. After reviewing the matter utilizing any procedure the Hearing Examiner deems appropriate, which may or may not include an advertised public hearing, the Hearing Examiner will issue a non-binding recommendation to the Board with respect to the issue remanded, which recommendation will become part of the record when the matter is again heard by the Board. (Sec. 2-87, Code of Laws and Ordinances of Collier County, Florida) A copy of the Special Act, together with a copy of the Hearing Examiner Ordinance, is attached. 2. The Board should accept without comment the four motions filed by the owner of the proposed Isles of Capri Food Truck Park and move directly to hearing the three publicly noticed appeals or remand the matter to the Hearing Examiner. To the best of my information and belief, the filing of a motion to the BZA is an issue of first impression for the Board. The following is an excerpt from an article written by Mr. Robert Lincoln (who authored the four motions), published in the Stetson Law Review (Vol. 25, 1996): “b. Procedural Due Process in Quasi-Judicial Hearings Quasi-judicial proceedings are not required to provide all the safeguards of a proceeding before a court. The procedural due process considerations that attach to quasi-judicial actions were well described in Jennings v. Dade County: Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure. Nonetheless, certain standards of basic fairness must be adhered to in order to afford due process. Consequently, a quasi-judicial decision based upon the record is not conclusive if minimal standards of due process are denied. A quasi -judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard. In quasi-judicial zoning hearings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all 12.A Packet Pg. 270 10/12/2021 the facts upon which the commission acts. In addition, the opportunity to be heard must be at a fair hearing before an impartial body.” Collier County does not have any procedure concerning the filing of a motion to be heard by the BZA prior to hearing a publicly noticed appeal. The filing and hearing of a motion was sim ply never contemplated by the Board. The BZA is not a Court. Like many BZAs elsewhere, the Collier County BZA is not comprised of trained jurists. A quasi-judicial board is only expected to meet basic due process requirements. Quasi- judicial hearings are expressly not controlled by strict rules of evidence or procedure. Without any process or procedure in place concerning motion practice, hearing and ruling on these motions in and of itself creates a due process issue. It would also open the door for further applicants to file motions, which would greatly expand the ability of the non-prevailing party in a quasi-judicial hearing to contest the decision, creating both delay and uncertainty in the process. The only decision the BZA need make is whether you wish to hear these three appeals or remand the matters to the Hearing Examiner. FISCAL IMPACT: None. RECOMMENDATION: That the Board accept without comment four motions filed by the owner of the proposed Isles of Capri Food Truck Park and either (1) move directly to hearing the three publicly noticed appeals, or (2) remand the appeals to the Hearing Examiner. Prepared by: Jeffrey A. Klatzkow, County Attorney ATTACHMENT(S) 1. Motion to Dismiss SDP Appeal - Standing 10-1-21 (PDF) 2. Ex 1 to MTD for lack of standing - PL20190001747 SDPI Insufficiency Letter (PDF) 3. Response to Motion to Dismiss SDP Appeal re Standing (PDF) 4. Motion to Dismiss OI Appeal - Jurisdiction 10-1-21 (PDF) 5. Response to Motion to Dismiss OI Appeal re Jurisdiction (PDF) 6. Motion to Dismiss SDP Appeal - Jurisdiction 10-1-21 (PDF) 7. Response to Motion to Dismiss SDP Appeal re Jurisdiction (PDF) 8. Motion to Limit Issues of SDP Appeal - 10-4-21 (PDF) 9. Response to Motion to Limit Retroactive Application and Cross-Motion (PDF) 10. Chapter 2001-344 Laws of Florida (PDF) 11. Hearing Examiner Ordinance - codified (PDF) 12. 2021.09.08 Collier County Clerk ltr re legal notice-PL20210001944 (PDF) 13. 2021.09.08 Collier County Clerk ltr re legal notice-PL20210002121 (PDF) 12.A Packet Pg. 271 10/12/2021 COLLIER COUNTY Board of County Commissioners Item Number: 12.A Doc ID: 20268 Item Summary: *** This item must be heard prior to items 8A, 8B, and 8C *** Recommendation that the Board accept without comment four motions filed by the owner of the proposed Isles of Capri Food Truck Park and either (1) move directly to hearing the three publicly noticed appeals, or (2) remand the appeals to the Hearing Examiner. Meeting Date: 10/12/2021 Prepared by: Title: Legal Assistant – County Attorney's Office Name: Wanda Rodriguez 10/05/2021 4:47 PM Submitted by: Title: County Attorney – County Attorney's Office Name: Jeffrey A. Klatzkow 10/05/2021 4:47 PM Approved By: Review: Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 10/06/2021 8:21 AM Office of Management and Budget Susan Usher Additional Reviewer Completed 10/06/2021 11:36 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 10/06/2021 2:10 PM County Manager's Office Sean Callahan Level 4 County Manager Review Completed 10/06/2021 3:28 PM Board of County Commissioners Geoffrey Willig Meeting Pending 10/12/2021 9:00 AM 12.A Packet Pg. 272 BEFORE THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA FCC BEACH AND YACHT, LLC, Appellant v APPEAL No. PL20210001944 COLLIER COUNTY, and GRIDER ADMINISTRATIVE APPEAL OF REVOCABLE TRUST, SITE DEVELOPMENT PLAN Appellees PL20200001903 GRIDER REVOCABLE TRUST’S MOTION TO DISMISS FOR LACK OF STANDING Grider Revocable Living Trust (the “Trust”), by and through undersigned counsel, moves the Board of Zoning Appeals (the “BZA”) to dismiss Appeal No. 20210001944 by FCC Beach and Yacht, LLC (“FCC”) of Site Development Plan (SDP) PL20200001903 because FCC has not established it is aggrieved by the approval of the SDP, and in support states: 1. The Trust is the applicant for SDP PL20200001903. FCC is appealing the approval of that application by the Development Review Division. 2. FCC’s appeal of the SDP approval asserts only one error by staff: approving the Food Truck Park use as an “eating place” (SIC 5812), which is a permitted use pursuant to LDC § 2.03.03.C.1.a.31. FCC asserts the Staff should have required the Trust obtain a “Comparable Use Determination,” even though the Trust had a prior Zoning Verification Letter confirming that the Food Truck Park was a permitted as an eating place. 3. FCC’s appeal of the SDP is an “administrative appeal” – that is, an appeal of a decision, determination or interpretation of the County’s Land Development Code (“LDC”) by the Development Review Division, who has been delegated authority by the County Manager. While LDC § 1.06.01.D.6.a gives the right to appeal an official interpretation to any “affected person” living within 300 feet of the subject property, only “aggrieved persons” have authority to bring 12.A.1 Packet Pg. 273 Attachment: Motion to Dismiss SDP Appeal - Standing 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 2 other administrative appeals. That standard is found in Code of Laws and Ordinances (the “Code”) § 250-58, which states an appeal “may be taken by any person aggrieved or by any officer, department, board, or bureau of the governing body or bodies in the area affected by the administrative decision, determination or requirement made by the administrative official.” (emphasis added). 4. The LDC does not define “aggrieved person,” but the longstanding definition under Florida law is as follows: An aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest which is or will be affected by the action of the zoning authority in question. The interest may be one shared in common with a number of other members of the community as where an entire neighborhood is affected, but not every resident and property owner of a municipality can, as a general rule, claim such an interest. An individual having standing must have a definite interest exceeding the general interest in community good share in common with all citizens. So-called "spite suits" will not be tolerated in this area of the law any more than in any other. Renard v. Dade County, 262 So. 2d 832, 837 (Fla. 1972). Staff has previously required third parties such as FCC to meet that legal definition of an aggrieved person to appeal an SDP approval. In finding an appeal of a site plan insufficient, Raymond Bellows wrote: The application does not address the standing of your client; it does not identify how your client has been aggrieved by the administrative decision as required by Section 250-58 of the Collier County Code of Laws. Per the letter included with the application, you are appealing the administrative decision that individual hotel rooms are not subject to the 700 square foot minimum floor area per unit requirement for Mixed Use building types located within the Gateway Triangle Mixed Use Overlay, Mixed Use Subdistrict (GTMUD-MXD) (LDC 4.02.16 B.l., Table 7). Please demonstrate how this administrative decision will cause your client to suffer an adverse effect to an interest protected or furthered by the Collier County Growth Management Plan, Land Development Code, or Building Codes, and how the alleged adverse interest exceeds in degree the general interest in the community good shared by all persons (Insufficiency Letter dated August 19, 2019, attached as Exhibit 1) (emphasis added). 12.A.1 Packet Pg. 274 Attachment: Motion to Dismiss SDP Appeal - Standing 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 3 5. Unfortunately, the Staff failed to apply the same required legal test here. FCC’s appeal of the Trust’s SDP fails to include any allegations that, if proved, would establish FCC has any legitimate interest created by the LDC that will be adversely affected in any way by the Staff determination that a Food Truck Park is an “eating place” permitted by LDC § 2.03.03.C.1.a.31, or that any such interest exceeds the interest of the general public. 6. Moreover, there is no way FCC, whose property is also zoned C-3, can establish the decision that a Food Truck Park is a permitted use in the C-3 district will impose any adverse impact on its property based on any interest established by the LDC that exceeds that of the general public. FCC cannot establish that any traffic, noise, or any other aspect of a Food Truck Park that could affect its property would be greater or different than for all of the other uses permitted in the district, or greater than would affect all of the property owners and residents in Isles of Capri. 7. Given all the facts, this appeal is not a good-faith objection: it is a spite-suit to delay and harass the Trust from developing its property. 8. FCC’s appeal of the Trust’s SDP approval is patently insufficient, does not establish FCC’s standing to bring that appeal, and therefore must be dismissed. WHEREFORE, the Grider Revocable Trust demands the BZA dismiss this appeal for the FCC’s failure to allege facts establishing standing to appeal SDP PL2020. Respectfully submitted, /s/ Robert K. Lincoln ROBERT K. LINCOLN Florida Bar No.: 0006122 Primary Email: Robert.Lincoln@flalandlaw.com Secondary Email: Amra.Dillard-Rickwa@flalandlaw.com 2055 Wood Street, Suite 206 Sarasota, FL 34237 T: (941) 681-8700 / F: (941) 363-7930 Counsel for Grider Revocable Living Trust 12.A.1 Packet Pg. 275 Attachment: Motion to Dismiss SDP Appeal - Standing 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 4 NOEL J. DAVIES Fla. Bar No.: 100527 Davies Duke, PLLC 2375 Tamiami Trail N, Suite 306 Naples, FL 34103 Telephone: (239) 216-2792 Noel.Davies@daviesduke.com Co-Counsel for Grider Revocable Living Trust CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically furnished via e-mail to the following this 1st day of October , 2021. GLENN BURHANS, JR. Bridget Smitha Christopher Clark 106 East College Avenue, Suite 700 Tallahassee, FL 32301 Telephone: (850) 329-4850 gburhans@stearnsweaver.com bsmitha@stearnsweaver.com crclark@stearnsweaver.com cabbuhl@stearnsweaver.com Counsel for FCC RICHARD D. YOVANOVICH Coleman Yovanovich & Koester, P.A. 4001 Tamiami Trail North, Suite 300 Naples, FL 34103 Telephone: (239) 435-3535 ryovanovich@cyklawfirm.com ddquintanilla@cyklawfirm.com Counsel for FCC JEFFREY KATZKOW HEIDI ASHTON-CISKO Collier County Attorney’s Office 3299 E. Tamiami Trail, Suite 800 Naples, FL 34112 Telephone: (239) 252-8400 Jeff.Katzkow@colliercountyfl.gov Heidi.Ashton@colliercountyfl.gov Counsel for Collier County, Florida /s/ Robert K. Lincoln ROBERT K. LINCOLN Florida Bar No.: 0006122 12.A.1 Packet Pg. 276 Attachment: Motion to Dismiss SDP Appeal - Standing 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.2Packet Pg. 277Attachment: Ex 1 to MTD for lack of standing - PL20190001747 SDPI Insufficiency Letter (20268 : Isles of Capri Food Truck Park motions) 1 BEFORE THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA FCC BEACH AND YACHT, LLC, Appellant v APPEAL No. PL20210001944 COLLIER COUNTY, and GRIDER ADMINISTRATIVE APPEAL OF REVOCABLE TRUST, SITE DEVELOPMENT PLAN Appellees PL20200001903 RESPONSE IN OPPOSITION TO GRIDER REVOCABLE TRUST’S MOTION TO DISMISS FOR LACK OF STANDING Appellant FCC Beach & Yacht, LLC (“FCC”) owns 32 of the 65 parcels located in Collier County on a piece of property that is nearly entirely surrounded by water (the “Semi- Island”). The Semi-Island is a small portion of a larger chain of islands known as the Isles of Capri and is primarily residential in character. Appellee Grider Revocable Living Trust (“Applicant”) applied to Appellee Collier County (“County”) for approval of a site development plan (“SDP”) that included eight of Applicant’s parcels (the “SDP Parcels”). The SDP Parcels are within 300 feet of FCC’s parcels on the Semi-Island. The SDP proposes to develop the SDP Parcels for use as a food truck park in which food and alcohol will be served from food trucks and consumed by patrons offsite or onsite at outdoor seating, in the open field areas identified on the SDP, and/or at an outdoor bar and dance floor and surrounding areas (the “Food Truck Park & Bar”). The Food Truck Park & Bar will substantially change the character of the Semi-Island, attracting increased numbers or non-residents, and increasing traffic, noise and light pollution. Each food truck is anticipated to rely upon generators, which exponentially increase outdoor sound and noxious fumes. No County regulations limit the number of food trucks that may congregate in the Food Truck Park & Bar, nor mandate the provision of restrooms, regulate parking, prohibit outdoor amplified music, limit hours of operation, or otherwise protect the 12.A.3 Packet Pg. 278 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) 2 health, safety and welfare of neighboring properties such as FCC’s. As the owner of nearly half of the parcels on the Semi-Island, FCC will be substantially affected by the increased number of non-residents, and the increased noise, traffic, garbage, and smells emanating from the Food Truck Park & Bar. Despite the clear detrimental impact of the SDP approval on FCC, Applicant claims FCC lacks standing to appeal. As set forth in more detail below, Applicant’s Motion to Dismiss should be denied because FCC has established its status as an aggrieved party. MEMORANDUM OF LAW “Appeals to a board of zoning appeals or the governing body, as the case may be, may be taken by any person aggrieved or by any officer, department, board, or bureau of the governing body or bodies in the area affected by the decision, determination or requirement made by the administrative official.” See Sec. 250-58(a), Collier County Code of Laws,. “An aggrieved or 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, Land Development Code, or Building Code(s). The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons.” See Form for Appeal of Administrative Decision under Section 250-58, available at https://www.colliercountyfl.gov/home/showdocument?id=14685 (last accessed October 4, 2021).1 As discussed below, FCC satisfies this criteria because it will: (1) suffer an adverse effect; (2) to an interest protected by the Collier County Land Development Code (“LDC”). Namely, FCC has been denied its right to be heard in conjunction with the comparable use 1 All emphasis is added unless otherwise noted. 12.A.3 Packet Pg. 279 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) 3 determination procedure set forth in LDC section 10.02.06 K (the “CUD Procedure”) and the County failed to ensure FCC, as a neighboring property owner, will not be subjected to noise, glare, or odor effects greater than that of other permitted uses.2 Each of these interests will be addressed in turn. Because food truck parks are not specifically identified as a permitted, accessory, or conditional use within the C-3 zoning district, the LDC requires that they “shall be prohibited in such zoning district.” See LDC section 2.02.03 (“Any use or structure not specifically identified in a zoning district as a permitted use, conditional use, or accessory use shall be prohibited in such zoning district.”); LDC section 2.03.03.C (identifying permitted, conditional, and accessory uses within the C-3 zoning district without including food truck parks). The only way the County could have approved the SDP or allowed the Food Truck Park & Bar in the C-3 zoning district is if the County was authorized to exercise discretion through the CUD Procedure to determine the use was a permissible, conditional or accessory use.3 In fact, the County advised the Applicant that its SDP could not be approved “until the comparable/ compatible use determination is approved.” See March 17, 2021 Zoning Review, attached as Exhibit A, at p. 7. The CUD Procedure provides: K. Comparable Use Determination. 1. The following Comparable Use Determination (CUD) shall be used to determine whether a use is comparable in nature with the list of permitted uses, and the purpose and intent statement of the zoning district, overlay, or PUD. 2 Applicant submitted the SDP for approval after adoption of the CUD Procedure. Thus, the County was required to comply with the CUD Procedure in approving the SDP. 3 Technically, the CUD Procedure may only be used where the permitted uses within the zoning district are not clearly defined. See LDC section 2.03.00.A. Here, the zoning district was clearly limited to permanent food structures and excluded food truck parks. See LDC section 2.03.03 C.1.a.31. 12.A.3 Packet Pg. 280 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) 4 2. To be effective, the Comparable Use Determination shall be approved by the Hearing Examiner by decision, or Board of Zoning Appeals by resolution, at an advertised public hearing based on the following standards, as applicable: a. The proposed use possesses similar characteristics to other permitted uses in the zoning district, overlay, or PUD, including but not limited to the following: i. Operating hours; ii. Traffic volume generated/attracted; iii. Type of vehicles associated with the use; iv. Number and type of required parking spaces; and v. Business practices and activities. b. The effect of the proposed use would have on neighboring properties in relation to the noise, glare, or odor effects shall be no greater than that of other permitted uses in the zoning district, overlay, or PUD. c. The proposed use is consistent with the GMP, meaning the applicable future land use designation does not specifically prohibit the proposed use, and, where the future land use designation contains a specific list of allowable uses, the proposed use is not omitted. d. The proposed use shall be compatible and consistent with the other permitted uses in the zoning district, overlay, or PUD. e. Any additional relevant information as may be required by County Manager or Designee. 3. The Administrative Code shall establish the process and application submittal requirements to obtain a Comparable Use Determination. See LDC section 10.02.06 K. Because the effect of the CUD Procedure is to allow a use on a property that would not otherwise be allowed, and for which neighboring properties were not previously on notice could be allowed, the CUD Procedure required that the proposed use not only be comparable in nature to listed permitted uses, but also be comparable in impact to neighboring properties. The CUD Procedure protects at least two of FCC’s interests: (a) the County was required to hold an advertised public hearing, granting FCC a right to be heard, and (b) the County was required to protect neighboring properties, such as FCC’s, from “noise, glare 12.A.3 Packet Pg. 281 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) 5 [and/or] odor effects.” Id. The County’s approval of the SDP without complying with the CUD Procedure adversely affects both of these interests. First, FCC was denied its right to be heard at the advertised public hearing required by the CUD Procedure. Had the County held a public hearing, a necessary prerequisite for approving the SDP, FCC could have presented the expert opinion of Wayne Arnold demonstrating that a Food Truck Park & Bar is not comparable to any permitted use identified in the C-3 zoning district because the impacts to neighboring properties, such as FCC’s, are substantially different and more burdensome. See W. Arnold Opinion, incorporated by reference in the appeal and attached as Exhibit B. For instance, unlike restaurants, the food trucks are not structures that meet the required building codes for structures and are anticipated to use generators, which will emit noxious fumes and noise. Additionally, the Project Site Plan proposes live, amplified music from noon until 10 p.m. every day with no noise mitigation strategies employed. FCC would have demonstrated at the public hearing that the Food Truck Park & Bar is not comparable in nature to permitted uses listed in the C-3 zoning district, nor comparable in impact to neighboring properties, and will detrimentally impact FCC’s property.4 This denial of due process adversely affected an interest of FCC protected by the LDC, making FCC an aggrieved party. Second, the CUD Procedure was enacted to ensure a use would not be allowed within the C-3 zoning district that emits more noise, glare or odor upon neighboring properties than other permitted uses. As a neighboring property owner, FCC was entitled to have the County make 4 The Hearing Examiner would have had the authority to consider any evidence presented by FCC at the public hearing. “The Hearing Examiner shall not be limited to the evidence presented by Applicant or County at the hearing. The Hearing Examiner may consider any additional relevant evidence including, but not limited to, any of the following: . . . . Physical characteristics of the subject parcel and surrounding lands. . . . Nature of and impacts on surrounding land use.” See LDC, Chapter 9, Administrative Procedures Manual at p. 243. 12.A.3 Packet Pg. 282 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) 6 this determination before approving the SDP. By failing to do so, FCC’s interest was adversely affected, making FCC an aggrieved party. Thus, FCC has at least two legally recognizable interests that will be substantially affected by the SDP Approval. As recognized by Applicant, these interests may be “shared in common with a number of other members of the community as where an entire neighborhood is affected.” See Motion, at p. 2 (quoting Renard v. Dade County, 262 So. 2d 832, 837 (Fla. 1972)). The interests need only “exceed[] the general interest in community good shared[] in common with all citizens.” Id. Unlike the appeal referenced in Exhibit 1 to Applicant’s Motion to Dismiss, FCC demonstrated in its appeal that it will be aggrieved by the SDP Approval: The food truck park will attract people to [the Semi-Island] that would not otherwise come to the island, increase traffic to the area greatly diminish property values for surrounding property owners and the residents of [the Semi-Island]. The Property Owner will suffer significant damages including but not limited loss in property value as a result of the construction authorized in the SDP. See Appeal, p. 3. Thus, FCC articulated specific adverse effects that will impact FCC to a greater extent than the average citizen of Collier County. FCC’s loss in property value resulting from the Food Truck Park & Bar is a tangible and quantifiable loss far exceeding some “general interest in community well being shared by all persons.” Florida Rock Properties v. Keyser, 709 So. 2d 175, 178 (Fla. 5th DCA 1998) (involving Section 163.3215(2), Fla. Stat. which defined “aggrieved party” the same as Sec. 250-58(a), Collier County Code of Laws). Applicant incorrectly suggests at paragraph 6 of the Motion that FCC must demonstrate that it will be impacted to a greater degree than any other property owner on the Semi-Island. Rather, FCC need only show something more than a generalized interest. See, e.g., Save Homosassa River Alliance, Inc. v. Citrus County, 2 So.3d 329, 340 (Fla. 5th DCA 2008) (interpreting similar language and opining: “The statute does not say that a party must be harmed 12.A.3 Packet Pg. 283 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) 7 to a greater degree than the general public;” “There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that exceeds in degree the general interest in community good shared by all persons to establish standing. It simply means that a party must allege that they have an interest that is something more than ‘a general interest in community well being.’”); Sw. Ranches Homeowners Ass'n, Inc. v. Broward County, 502 So. 2d 931, 934 (Fla. 4th DCA 1987) (holding that property owners adjacent to a proposed development would have standing, but that a group of concerned citizens with a generalized interest would not). Because the Food Truck Park & Bar will substantially reduce the value of 32 of FCC’s parcels, FCC has established an interest separate from an interest in the “community good.” For the foregoing reasons, FCC is an aggrieved party and Applicant’s Motion to Dismiss for Lack of Standing should be denied. Respectfully submitted this 5th day of October, 2021. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Glenn Burhans, Jr. Florida Bar No. 605867 Bridget Smitha Florida Bar No. 0709581 Erin Tilton Florida Bar No. 104729 106 East College Avenue, Suite 700 Tallahassee, FL 32301 Telephone: (850) 329-4850 Primary: gburhans@stearnsweaver.com bsmitha@stearnsweaver.com etilton@stearnsweaver.com Secondary: cabbuhl@stearnsweaver.com abrantley@stearnsweaver.com COLEMAN YOVANOVICH & KOESTER, P.A. s/ Richard D. Yovanovich Richard D. Yovanovich Florida Bar No. 782599 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103 Telephone: (239) 435-3535 Primary: ryovanovich@cyklawfirm.com Secondary: dquintanilla@cyklawfirm.com Counsel for FCC Beach & Yacht, LLC 12.A.3 Packet Pg. 284 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) 8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via e-mail this 5th day of October, 2021 to: Jeffrey Katzkow Heidi Ashton-Cisko Collier County Attorney’s Office 3299 E. Tamiami Trail, Suite 800 Naples, FL 34112 Jeff.Katzkow@colliercountyfl.gov Heidi.Ashton@colliercountyfl.gov Robert K. Lincoln Law Office of Robert K. Lincoln, P.A. 2055 Wood Street, Suite 206 Sarasota, FL 34237 Robert.Lincoln@flalandlaw.com S: Amra.Dillar-Rickwa@flalandlaw.com Noel J. Davies Davies Duke, PLLC 2375 Tamiami Trail N., Suite 306 Naples, FL 34103 Noel.Davies@daviesduke.com s/ Richard D. 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,IERDWGRFNVDUHDGGHGWRWKHVLWHLQWKHIXWXUHDGU\ILUHILJKWLQJVWDQGSLSHV\VWHPZLOOEH UHTXLUHG1)3$ ,I\RXKDYHDQ\TXHVWLRQVSOHDVHFRQWDFWPHDW 6LQFHUHO\ 6WHIDQLH1DZURFNL 6HQLRU3ODQQHU *URZWK0DQDJHPHQW'HSDUWPHQW $SS 12.A.3 Packet Pg. 295 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) Exhibit B 12.A.3 Packet Pg. 296 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) Q. Grady Minor & Associates, P.A. Ph. 239-947-1144 Fax. 239-947-0375 3800 Via Del Rey EB 0005151 LB 0005151 LC 26000266 Bonita Springs, FL 34134 www.gradyminor.com April 15, 2021 Ms. Anita Jenkins, Planning and Zoning Director Growth Management Division/Planning and Regulation 2800 North Horseshoe Drive Naples, FL 34104 RE: Request for Official Interpretation Dear Ms. Jenkins: On behalf of FCC Beach & Yacht, LLC, we are requesting an official interpretation of the Collier County Land Development Code (LDC). LDC Section 1.06.02 D. provides that an official interpretation may be requested by any affected person, resident, developer, landowner, government agency or department, or any person having a contractual interest in land in Collier County. FCC Beach & Yacht, LLC is a landowner of C-3 zoned property in Collier County and is eligible to seek the official interpretation of the LDC. The applicant seeks to confirm that a “Food Truck Park”, “Food Truck Court”, or “Mobile Food Vending Park”, is not a permitted use in the C-2 and C-3 Zoning Districts, or within any commercial component of a Planned Unit Development (PUD), unless the specific use of a “Food Truck Park”, “Food Truck Court”, or “Mobile Food Vending Site” (hereinafter collectively referred to as “Food Truck Park”) is identified as a permitted use within the commercial zoning district or commercial component of a PUD. This interpretation also seeks to confirm that a “Food Truck Park”, may not be deemed a permitted use within the C-2 and C-3 Zoning Districts, or any commercial component of a PUD. The interpretation seeks to confirm that the LDC must be amended to allow Food Truck Parks as an allowed use assuming the Board of County Commissioners agrees such a use should be allowed. As explained in this letter, a Food Truck Park is significantly different than a restaurant and should not be interpreted to be a restaurant. The term: “Food Truck Park” is not defined in the Collier County LDC, Ordinance 2004-41, as amended. LDC Section 2.02.03, Prohibited uses states the following: “Any use or structure not specifically identified in a zoning district as a permitted use, conditional use, or accessory use shall be prohibited in such zoning district. “ 12.A.3 Packet Pg. 297 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) Ms. Anita Jenkins, Planning and Zoning Director RE: Request for Official Interpretation April 15, 2021 Page 2 of 6 Because a Food Truck Park is undefined in the LDC, it is prohibited unless an official interpretation of the LDC is issued which then determines that the above described “Food Truck” use is a permitted use pursuant to LDC 2.03.00 A., and LDC 10.02.06 K. Comparable Use Determination, which state: LDC 2.03.00 A. A. Rules for Interpretation of Uses. In any zoning district, where the list of permitted uses contains the phrase "any other use which is comparable in nature with the foregoing uses and is consistent with the permitted uses and purpose and intent statement of the district" or any similar phrase which provides for a use which is not clearly defined or described in the list of permitted uses, which requires the discretion of the County Manager or designee as to whether or not it is permitted in the district, then the determination of whether or not that use is permitted in the district shall be made through the process outlined in LDC section 10.02.06 K. LDC section 10.02.06 K. K. Comparable Use Determination. 1. The following Comparable Use Determination (CUD) shall be used to determine whether a use is comparable in nature with the list of permitted uses, and the purpose and intent statement of the zoning district, overlay, or PUD. 2. To be effective, the Comparable Use Determination shall be approved by the Hearing Examiner by decision, or Board of Zoning Appeals by resolution, at an advertised public hearing based on the following standards, as applicable: a. The proposed use possesses similar characteristics to other permitted uses in the zoning district, overlay, or PUD, including but not limited to the following: i. Operating hours; ii. Traffic volume generated/attracted; iii. Type of vehicles associated with the use; iv. Number and type of required parking spaces; and v. Business practices and activities. b. The effect of the proposed use would have on neighboring properties in relation to the noise, glare, or odor effects shall be no greater than that of other permitted uses in the zoning district, overlay, or PUD. c. The proposed use is consistent with the GMP, meaning the applicable future land use designation does not specifically prohibit the proposed use, and, 12.A.3 Packet Pg. 298 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) Ms. Anita Jenkins, Planning and Zoning Director RE: Request for Official Interpretation April 15, 2021 Page 3 of 6 where the future land use designation contains a specific list of allowable uses, the proposed use is not omitted. d. The proposed use shall be compatible and consistent with the other permitted uses in the zoning district, overlay, or PUD. e. Any additional relevant information as may be required by County Manager or Designee. 3. The Administrative Code shall establish the process and application submittal requirements to obtain a Comparable Use Determination. It is my expert planning opinion that a “Food Truck Park” is not a comparable use to any other commercial use identified in the Collier County LDC within the C-2 and C-3 Zoning Districts or any commercial component of a PUD. In my expert planning opinion, a “Food Truck Park” does not have similar characteristics to any other use permitted by right or conditional use in the C-2 and C-3 Zoning Districts or commercial component of a PUD. Specifically, a Food Truck Park is not comparable to a restaurant. The American Planning Association has published a Planning Advisory Service Report, PAS EIP-36, November 2015 titled Regulating Food Trucks. The Report provides an array of local government ordinances in which a multitude of local governments have developed specific zoning and permitting guidelines to address among other considerations, food safety, traffic, noise and neighborhood compatibility. These many local governments did not determine that a “Food Truck Park” is the same use as a restaurant. Communities such as San Antonio, Texas have determined that there are potential negative economic impacts associated with “Food Truck Parks”. The “Food Truck Park” use is not comparable to a restaurant in that it is not located in a brick- and-mortar facility and does not meet any Collier County LDC definition for a restaurant. The LDC defines restaurant and the types of restaurants as follows: Restaurant: A building or part of a building where food is offered for sale or sold to the public primarily for immediate consumption. Restaurant, drive-through: A fast food facility with one or more drive-through lanes where food is ordered through a speaker phone and a menu board located in the drive- through lane. This type of facility has no indoor seating or food ordering but may have walk-up windows and/or outdoor seating. Restaurant, fast food: An establishment where food is prepared and served to the customers in an ready to consume state for consumption either within the restaurant building, outside the building but on the same premises, or off the premises and having any combination of two or more of the following characteristics: 12.A.3 Packet Pg. 299 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) Ms. Anita Jenkins, Planning and Zoning Director RE: Request for Official Interpretation April 15, 2021 Page 4 of 6 a. A limited menu, usually posted on a sign rather than printed on individual sheets or booklets; b. Self-service rather than table service by restaurant employees; c. Disposable containers and utensils; d. A kitchen area in excess of 50% of the total floor area; or e. A cafeteria or delicatessen shall not be deemed a fast food restaurant for the purposes of this Land Development Code. Restaurant, sit-down: A restaurant where food is ordered from a menu normally while seated at a table, and where table service is provided. Cafeterias are deemed sit-down restaurants for the purposes of this Land Development Code. Restaurant, walk-up: A fast food facility with one or more walk-up windows. This type of facility has no indoor eating or drive-through windows, but may have outdoor seating. A “Food Truck” is not a permanent structure and there are no LDC provisions relating to the use and operation of a “Food Truck”. There are numerous Collier County code provisions that govern and regulate where and how a restaurant may operate. There are no such code provisions relating to “Food Truck Parks”. Furthermore, restaurant sizes are specifically limited in the C-2 and C3 Zoning Districts. A Food Truck Park could collectively exceed the square footage limitation for a restaurant because the food truck is not considered a permanent structure and does not count towards a restaurant’s square footage. In addition, food truck park could include multiple acres, have an unlimited number of food trucks, allow hundreds of patrons, include an outdoor bar, include an outdoor band area and not exceed the permanent structure limitations associated with a restaurant. The very nature of a Food Truck Park is more like an amusement/entertainment use and not a restaurant use. Other communities that have specifically addressed “Food Truck Park” and “Food Trucks” have included restrictions specifically for this use. Evanston, Illinois for example prohibits a “Food Truck” from being located within 100’ of a fixed location restaurant, unless consent is provided by the restaurant owner. Evanston also establishes separation standards from a school, prohibits outside amplified sound, limits hours of operation and requires access to restroom facilities. Similarly, Raleigh, North Carolina regulates food trucks by setting licensing guidelines, establishing a separation from residential zones, maximizing the number of mobile vendors that may congregate, and only permitting amplified sound by City Council approval. These and many other communities have distinguished a “Food Truck” from a restaurant use due to the obvious physical and operational differences compared to a conventional restaurant. While some communities have embraced “Food Trucks” and “Food Truck Parks” as an opportunity to expand food choices within a community, most have also established clear permitting guidelines for this use in order to protect the health, safety and welfare of their 12.A.3 Packet Pg. 300 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) Ms. Anita Jenkins, Planning and Zoning Director RE: Request for Official Interpretation April 15, 2021 Page 5 of 6 communities. These communities have recognized the unique characteristics of a “Food Truck” and “Food Truck Park” and determined that without location and operational standards the use is not permitted. The ITE Manual only recently began to include the use category for a “Food Court Pod” as a service industry. The study area was based only in Oregon and looked only at a limited number of sites and may not reflect the traffic associated with a Food Truck Park in Southwest Florida, which has year-round outdoor dining opportunities. Depending on the location a Food Truck Park, may generate far greater and vastly different traffic volume and associated vehicles associated with the use. The LDC does not contemplate a “Food Truck Park” and does not establish parking requirements for the use. Depending on the location of such a “Food Truck Park”, parking and other impacts may not be similar to that of a brick-and-mortar restaurant use. With regard to Business practices and activities, a “Food Truck Park” by its nature will have almost all activities occurring outdoors, with little if any indoor dining or activity. Further, the mobile nature of the food trucks themselves require sources of power often in the form of a portable generator, which generates noise and odor, which without control may be incompatible with nearby residences, schools, or business activities. The use is largely an outdoor use with regard to dining and patron congregation, lawn games, and often an emphasis on outdoor entertainment, including live or amplified music. If not properly located and regulated, the use could quickly take on a party or amusement park atmosphere, which would be clearly incompatible with surrounding residential uses or other business operations. In my professional planning opinion, a “Food Truck Park” is not a permitted use contemplated in the Collier County LDC, nor does it meet the standards for the Hearing Examiner to determine that the use is a comparable land use to other uses permitted in the C-2 and C-3 Zoning Districts and commercial components a PUD. Without specific limitations, guidelines, and standards for a “Food Truck Park”, this use cannot be determined to have no impact on neighboring properties with regard to noise, glare, or odor, nor would it be compatible in all instances given the location of the County’s commercial zoning districts which in many cases are proximate to residential uses. Further, every PUD is unique and clearly a “Food Truck Park” would not be compatible in every commercial component of a PUD where for instance a restaurant use is allowed. Collier County has limited the location and effectively the number of other uses in our community based on the real and perceived impacts of that use. For instance, a convenience store with fuel pumps is subject to a very specific set of development standards that controls location, building architecture and signage, landscape buffers and building placement. Many other uses require a conditional use approval which is a public hearing process to enable the public to provide input. Given the unique nature of a “Food Truck Park” it is my professional expert opinion that a Food Truck Park is not comparable or compatible with other permitted uses found in the C-2 and C-3 Zoning Districts and commercial components of a PUD and therefore, are not permitted uses in 12.A.3 Packet Pg. 301 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) Ms. Anita Jenkins, Planning and Zoning Director RE: Request for Official Interpretation April 15, 2021 Page 6 of 6 those districts. Accordingly, we are requesting an official interpretation that Food truck Parks are not permitted uses in the C-2 and C-3 Zoning Districts and commercial components of a PUD. Please feel free to contact Rich Yovanovich at 435-3535 or me should you have any questions. Sincerely, D. Wayne Arnold, AICP warnold@gradyminor.com c: FCC Beach & Yacht, LLC Richard D. Yovanovich GradyMinor File (GBFI-21) 12.A.3 Packet Pg. 302 Attachment: Response to Motion to Dismiss SDP Appeal re Standing (20268 : Isles of Capri Food Truck Park motions) BEFORE THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA FCC BEACH AND YACHT, LLC, Appellant v APPEAL No. PL20210002121 COLLIER COUNTY, and GRIDER ADMINISTRATIVE APPEAL OF REVOCABLE TRUST, OFFICIAL INTERPRETATION Appellees PL20210000943 GRIDER REVOCABLE TRUST’S MOTION TO DISMISS APPEAL OF OFFICIAL INTERPRETATION FOR LACK OF JURISDICTION Grider Revocable Living Trust (the “Trust”), by and through undersigned counsel, moves the Board of Zoning Appeals (the “BZA”) to dismiss Appeal No. 20210002121 by FCC Beach and Yacht, LLC (“FCC”) of Official Interpretation (OI) PL20210000943 1 because the BZA has transferred all jurisdiction for the appeal to the Collier County Hearing Examiner (“HEX”), and in support states: 1. The Trust owns property zoned C-3 for which it has obtained an approved site and development plan (SDP) to allow a Food Truck Park. In issuing the SDP, staff determined a Food Truck Park is an “eating place” that is a permitted use under Land Development Code (LDC) § 2.03.03.C.1.a.31. 2. FCC filed a request for Official Interpretation of the LDC, PL20210000943, seeking to establish that (1) a Food Truck Park is not an eating place that is a permitted use under Land Development Code (LDC) § 2.03.03.C.1.a.31, and (2) that a Food Truck Park could not obtain a “comparable use determination” to be allowed in the C-2 or C-3 zone districts. FCC asks 1 Should the Trust’s appeal of OI PL20210000943 not be resolved by stipulation of the parties, the motion would apply to that proceeding as well. 12.A.4 Packet Pg. 303 Attachment: Motion to Dismiss OI Appeal - Jurisdiction 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 2 the BZA to apply that determination retroactively to the Trust’s Food Truck application and, effectively, deny and prohibit the Trust from using its property for that purpose. 3. The BZA’s authority over administrative appeals appears in Code of Laws and Ordinances (the “Code”) §§ 2-1171 and 250-58, in LDC §§ 1.06.01.D.6 (for appeals of Official Interpretation) and 10.04.04 (for Type III administrative appeals), and under Chapter 1.C.3 of the Administrative Code, which allows the BZA to make final decisions on appeals. 4. More specifically, LDC § 1.06.01.D.6 specifically provides that appeals of an Official Interpretation are to the Board of Zoning Appeals. However, amendments to the Code transferred the BZA’s authority over administrative appeals, including Official Interpretations, to the Office of the Hearing Examiner. 5. In 2013, the Board of County Commissioners (“BCC”) adopted Ordinance 2013- 25, creating the Office of the Hearing Examiner and establishing its duties. Pursuant to Code § 2- 87.1, “All type III appeals of administrative decisions or interpretations, as set forth in LDC Section 10.04.04, shall be heard by the Hearing Examiner.” In addition, the BCC adopted Code § 2-87.6, which states in part: All powers and duties expressly granted to the Hearing Examiner, either by this ordinance or through future resolutions, preempt the Collier County Planning Commission, or the Board of Zoning Appeals, as the case may be, with respect to the established procedures set forth in the Collier County Land Development Code. (Emphasis added). 6. The Collier County “Administrative Code for Land Development” is adopted and amended by Resolution of the BCC. Chapter 9 of the Administrative Code covers the jurisdiction and procedures of the Hearing Examiner. The subsection titled “Assignment” states: 12.A.4 Packet Pg. 304 Attachment: Motion to Dismiss OI Appeal - Jurisdiction 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 3 Once the application is submitted to the County and deemed complete pursuant to Chapter 1 through 7 of the Administrative Code, as applicable, the following petitions shall be assigned to the Hearing Examiner: . . . 3. Appeal of an Official Interpretation of the LDC. (Emphasis added). 7. FCC’s appeal of the OI is preempted to the Hearing Examiner by Code § 2-87.6 and the Administrative Code, and the BZA lacks any jurisdiction over the appeal. WHEREFORE, the Grider Revocable Trust demands the BZA find it lacks jurisdiction over Appeal PL20210002121 and remand it to the Hearing Examiner. Respectfully submitted, /s/ Robert K. Lincoln ROBERT K. LINCOLN Florida Bar No.: 0006122 Primary Email: Robert.Lincoln@flalandlaw.com Secondary Email: Amra.Dillard-Rickwa@flalandlaw.com 2055 Wood Street, Suite 206 Sarasota, FL 34237 T: (941) 681-8700 / F: (941) 363-7930 Counsel for Grider Revocable Living Trust NOEL J. DAVIES Fla. Bar No.: 100527 Davies Duke, PLLC 2375 Tamiami Trail N, Suite 306 Naples, FL 34103 Telephone: (239) 216-2792 Noel.Davies@daviesduke.com Co-Counsel for Grider Revocable Living Trust 12.A.4 Packet Pg. 305 Attachment: Motion to Dismiss OI Appeal - Jurisdiction 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically furnished via e-mail to the following this 1st day of October , 2021. GLENN BURHANS, JR. Bridget Smitha Christopher Clark 106 East College Avenue, Suite 700 Tallahassee, FL 32301 Telephone: (850) 329-4850 gburhans@stearnsweaver.com bsmitha@stearnsweaver.com crclark@stearnsweaver.com cabbuhl@stearnsweaver.com Counsel for FCC RICHARD D. YOVANOVICH Coleman Yovanovich & Koester, P.A. 4001 Tamiami Trail North, Suite 300 Naples, FL 34103 Telephone: (239) 435-3535 ryovanovich@cyklawfirm.com ddquintanilla@cyklawfirm.com Counsel for FCC JEFFREY KATZKOW HEIDI ASHTON-CISKO Collier County Attorney’s Office 3299 E. Tamiami Trail, Suite 800 Naples, FL 34112 Telephone: (239) 252-8400 Jeff.Katzkow@colliercountyfl.gov Heidi.Ashton@colliercountyfl.gov Counsel for Collier County, Florida /s/ Robert K. Lincoln ROBERT K. LINCOLN Florida Bar No.: 0006122 12.A.4 Packet Pg. 306 Attachment: Motion to Dismiss OI Appeal - Jurisdiction 10-1-21 (20268 : Isles of Capri Food Truck Park motions) BEFORE THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA FCC BEACH & YACHT, LLC Appellant, APPEAL No. PL20210002121 v. COLLIER COUNTY, ADMINISTRATIVE APPEAL OF OFFICIAL INTERPRETATION Appellee, PL20210000943 and GRIDER REVOCABLE TRUST, Opponent. ____________________________________/ RESPONSE IN OPPOSITION TO GRIDER REVOCABLE TRUST’S MOTION TO DISMISS APPEAL OF OFFICIAL INTERPRETATION FOR LACK OF JURISDICTION Appellant FCC Beach & Yacht Club, LLC (“FCC”) responds in opposition to the Motion to Dismiss Appeal of Official Interpretation for Lack of Jurisdiction (“Motion”) filed by Opponent Grider Revocable Trust (the “Trust”), stating as follows: SUMMARY OF GROUNDS TO DENY THE MOTION At issue in the Trust’s Motion is whether the BZA can exercise jurisdiction over appeals from official interpretations where provisions in the Administrative Code also allow the applicant to appeal to the Hearing Examiner. The Trust argues that these Administrative Code provisions preempt the BZA’s jurisdiction and that this appeal must be remanded to the Hearing Examiner. The Trust’s argument fails for the following reasons: (1) LDC § 1.06.01.D. expressly delegates the authority to hear appeals from official interpretations to the BZA; (2) the Administrative Code offers the applicant the option to appeal to the BZA or the Hearing Examiner, but does not require the applicant to do so; 12.A.5 Packet Pg. 307 Attachment: Response to Motion to Dismiss OI Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 2 and (3) Code § 2-87.6, dealing with preemption of powers and duties to the Hearing Examiner, does not apply to authority subsequently granted to the BZA. BACKGROUND 1. On June 15, 2021, pursuant to the procedures set forth in section 1.06.01.D. of the Land Development Code (“LDC”), FCC filed a Request for Official Interpretation to confirm that: (1) a food truck park is not a permitted use within the C-3 Zoning District, unless it is it is specifically identified as a permitted use, and (2) a food truck park cannot be “deemed” (or “treated”) as a permitted use within the C-3 Zoning District, unless a comparable use determination is made. 2. On August 4, 2021, the Zoning Director issued INTP-2021-PL-0943 (the “Official Interpretation”), which determined that a food truck park is comparable to a restaurant and therefore a permitted use in all zoning districts that permit restaurants. In rendering his Official Interpretation, the Zoning Director relied upon a comparable use determination issued by the Hearing Examiner in 2016 for a parcel of property located in the Bayshore Mixed-Use Overlay District Neighborhood Commercial Subdistrict (C-4 BMUDNC). The Zoning Director determined that this comparable use determination, HEX No. 2016-37, is to be applied County-wide in all commercial districts. 3. FCC appealed the Official Interpretation to the Board of Zoning Appeals (the “BZA”) as set forth in LDC § 1.06.01.D.6. The Trust filed its Motion arguing that the BZA lacks jurisdiction because authority over appeals of official interpretations is preempted to the Hearing Examiner by section 2-87.6 of the Code of Laws (“Code”). The Trust’s argument lacks merit and the Motion should be denied for the reasons detailed below. LEGAL ARGUMENT 4. The Code delineates the authority of both the BZA and the Hearing Examiner. Among the powers of the BZA is the duty to “hear, review, and approve, approve with conditions, or deny 12.A.5 Packet Pg. 308 Attachment: Response to Motion to Dismiss OI Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 3 appeals from interpretations made by the County Manager or designee pertaining to the Collier County GMP, the future land use map, the LDC, or the official zoning atlas by the County Manager or designee.” Code § 2-1171(b). The Hearing Examiner is empowered to hear “all type III appeals of administrative decisions or interpretations, as set forth in LDC Section 10.04.04.” Code § 2-87.1. Notably, appeals of official interpretations are not included in the list of type III appeals set forth in LDC § 10.04.04. 5. Consistent with Code § 2-1171(b), the LDC sets forth the process for appealing a written official interpretation. Pursuant to LDC § 1.06.01, within 30 days of receiving the written official interpretation, the applicant, affected property owner, or aggrieved or adversely affected party “may appeal the interpretation to the Building Board of Adjustments and Appeals for matters relating to building and technical codes as shown in LDC section 1.07.00 or to the Board of Zoning Appeals for all other matters in the LDC.” LDC § 1.06.01.D.6.a. (emphasis added). 6. The Trust admits that LDC § 1.06.01 provides for appeals of official interpretations to be made to the BZA, but argues that “amendments to the Code transferred the BZA’s authority over administrative appeals, including Official Interpretations, to the Office of the Hearing Examiner.” Motion ¶ 4. The amendment the Trust refers to is Ordinance No. 2013-25, creating the Hearing Examiner and establishing its powers and duties. Motion ¶ 5. The Trust fails to mention that Ordinance 2013-25 was enacted – and the Hearing Examiner created – prior to the adoption of LDC § 1.06.01. 7. Shortly after the County enacted Ordinance No. 2013-25 and created the Hearing Examiner, it adopted Ordinance Nos. 2013-56 and 2013-57. The latter ordinance establishes the Administrative Code for Land Development (“Administrative Code”), while the former codifies LDC amendments that correspond to the Administrative Code. Ordinance No. 2013-56 included the 12.A.5 Packet Pg. 309 Attachment: Response to Motion to Dismiss OI Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 4 addition of LDC § 1.06.01.D, which outlines the process for requesting an official interpretation, as well as the process for appealing an official interpretation, clearly providing that the appeal is to the BZA and that the BZA holds a public hearing to consider the appeal. 8. The Administrative Code, as originally adopted by Ordinance No. 2013-56, deals with appeals of official interpretations in two places. Administrative Code § 4.G. details the process of requesting an official interpretation and provides that “an official interpretation may be appealed to the BZA by the applicant, affected property owner, aggrieved, or adversely affected party within 30 days.” Administrative Code § 3.A. provides a process that “allows an applicant to appeal an Official Interpretation to the Hearing Examiner.” (emphasis added). Notably, Administrative Code § 3.A. does not apply to affected property owners or aggrieved or adversely affected parties. Chapter 9 of the Administrative Code goes on to list matters that are assigned to the Hearing Examiner and states that “[o]nce the application is submitted to the County and deemed complete pursuant to Chapters 1 through 7 of the Administrative Code, as applicable, the following petitions shall be assigned to the Hearing Examiner: . . . (3) Appeal of an Official Interpretation of the LDC.” 9. The Trust argues that the BZA is preempted from exercising jurisdiction over appeals from official interpretations because Administrative Code § 3.A. and chapter 9 allegedly transfer that authority to the Hearing Examiner. Motion ¶ 6. The Trust’s argument relies on the following language from Ordinance 2013-25, which is now Code § 2-87.6: To the extent authorized by law, by Resolution of the Board of County Commissioners, the Hearing Examiner may be assigned any and all other powers and duties that have previously been granted to the Collier County Planning Commission or the Board of Zoning Appeals, expressly excepting those powers reserved to the Collier County Planning Commission as the local planning agency (LPA), and land development regulation commission as required by F.S. §§ 163.3174 and 163.3194. All powers and duties expressly granted to the Hearing Examiner, either by this ordinance or through future resolutions, preempt the Collier County Planning Commission, or the 12.A.5 Packet Pg. 310 Attachment: Response to Motion to Dismiss OI Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 5 Board of Zoning Appeals, as the case may be, with respect to the established procedures set forth in the Collier County Land Development Code. (emphasis added).1 The Trust is incorrect for two reasons: (1) the Trust’s argument requires the BZA to read the Administrative Code in a manner that renders it both internally inconsistent and inconsistent with concurrently-adopted provisions of the LDC; and (2) by its plain language, Code § 2-87.6 only preempts jurisdiction over the BZA’s powers and duties that existed at the time the Hearing Examiner was created. 10. The Trust’s suggested interpretation renders Administrative Code § 3.A and chapter 9 inconsistent with both Administrative Code § 4.G and with LDC § 1.06.01.D.2 Contrary to the Trust’s selective interpretation, these provisions must be read in harmony and each given effect. When doing so, it is clear from the plain text that the Administrative Code does not transfer authority to the Hearing Examiner, but rather gives the applicant the choice of appealing to either the BZA or the Hearing Examiner. Chapter 9 can then be read to state that if an applicant chooses the Hearing Examiner, once the application is submitted and deemed complete it will be assigned to the Hearing Examiner. To read it otherwise, renders the Administrative Code both internally inconsistent and inconsistent with the LDC. See Dept. of Highway Safety v. Chakrin, 304 So. 3d 822 (Fla. 2d DCA 2020) (courts must give effect to all provisions and construe related provisions in harmony with one another); Brown v. Saint City Church of God, 717 So. 2d 557 (Fla. 3d. DCA 1998) (rules of statutory construction “apply with equal force and effect to the construction of local ordinances”). 1 As a threshold matter, the Trust’s argument is dependent upon the Administrative Code being a resolution of the Board of County Commissioners. While the Motion alleges that the Administrative Code “is adopted and amended by Resolution of the BCC,” Ordinance No. 2013-57 is clearly an ordinance of the Board of County Commissioners. 2 It is worth noting that by its own terms the Administrative Code yields to the LDC in the event of a conflict. Administrative Code § 1.B.2. 12.A.5 Packet Pg. 311 Attachment: Response to Motion to Dismiss OI Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 6 11. Even if the Trust’s interpretation were reasonable (and it is not), by its plain language Code § 2-87.6 only permits assignment of “all other powers and duties that have previously been granted to the Collier County Planning Commission or the Board of Zoning Appeals” and only preempts jurisdiction “with respect to the established procedures set forth in the Collier County Land Development Code.” (emphasis added). Code § 2-87.6 was enacted as part of the creation of the Hearing Examiner under Ordinance No. 2013-25. The BZA was not granted the explicit authority over appeals of official interpretations by the process established in LDC § 1.06.01.D until the later adoption of Ordinance No. 2013-56. Put simply, Code § 2-87.6 does not apply to LDC § 1.06.01.D. 12. The BZA has jurisdiction over appeals from official interpretations. That jurisdiction is set forth in Code § 2-1171(b), LDC § 1.06.01, and Administrative Code § 4.G. The BZA is not divested of jurisdiction by virtue of the Administrative Code providing the applicant with the optional flexibility to appeal to the Hearing Examiner if the applicant chooses to do so; particularly where, as here, the applicant has not chosen to do so. The Trust’s Motion lacks merit and this appeal should remain with the BZA as elected by the applicant. CONCLUSION WHEREFORE, for the foregoing reasons, FCC requests that the BZA deny the Trust’s Motion and decline the Trust’s request to remand this appeal to the Hearing Examiner. 12.A.5 Packet Pg. 312 Attachment: Response to Motion to Dismiss OI Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 7 Respectfully submitted this 5th day of October, 2021. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Glenn Burhans, Jr. Florida Bar No. 605867 Bridget Smitha Florida Bar No. 0709581 Erin Tilton Florida Bar No. 104729 106 East College Avenue, Suite 700 Tallahassee, FL 32301 Telephone: (850) 329-4850 Primary: gburhans@stearnsweaver.com bsmitha@stearnsweaver.com etilton@stearnsweaver.com Secondary: cabbuhl@stearnsweaver.com abrantley@stearnsweaver.com COLEMAN YOVANOVICH & KOESTER, P.A. s/ Richard D. Yovanovich Richard D. Yovanovich Florida Bar No. 782599 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103 Telephone: (239) 435-3535 Primary: ryovanovich@cyklawfirm.com Secondary: dquintanilla@cyklawfirm.com Counsel for FCC Beach & Yacht, LLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via e-mail this 5th day of October, 2021 to: Jeffrey Katzkow Heidi Ashton-Cisko Collier County Attorney’s Office 3299 E. Tamiami Trail, Suite 800 Naples, FL 34112 Jeff.Katzkow@colliercountyfl.gov Heidi.Ashton@colliercountyfl.gov Robert K. Lincoln Law Office of Robert K. Lincoln, P.A. 2055 Wood Street, Suite 206 Sarasota, FL 34237 Robert.Lincoln@flalandlaw.com S: Amra.Dillar-Rickwa@flalandlaw.com Noel J. Davies Davies Duke, PLLC 2375 Tamiami Trail N., Suite 306 Naples, FL 34103 Noel.Davies@daviesduke.com s/ Richard D. Yovanovich 12.A.5 Packet Pg. 313 Attachment: Response to Motion to Dismiss OI Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) BEFORE THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA FCC BEACH AND YACHT, LLC, Appellant v APPEAL No. PL20210001944 COLLIER COUNTY, and GRIDER ADMINISTRATIVE APPEAL OF REVOCABLE TRUST, SITE DEVELOPMENT PLAN Appellees PL20200001903 GRIDER REVOCABLE TRUST’S MOTION TO DISMISS FOR LACK OF JURISDICTION Grider Revocable Living Trust (the “Trust”), by and through undersigned counsel, moves the Board of Zoning Appeals (the “BZA”) to dismiss Appeal No. 20210001944 by FCC Beach and Yacht, LLC (“FCC”) of Site Development Plan (SDP) PL20200001903 because the BZA has transferred all jurisdiction for the appeal to the Collier County Hearing Examiner (“HEX”), and states: 1. The Trust is the applicant for SDP PL20200001903. FCC is appealing the Development Review Division’s approval of that application. 2. FCC’s appeal of the SDP is an “administrative appeal” – that is, an appeal of a decision, determination or interpretation of the County’s Land Development Code (“LDC”) by the Development Review Division, who has been delegated authority by the County Manager. 3. The BZA’s authority over administrative appeals appears in Code of Laws and Ordinances (the “Code”) §§ 2-1171 and 250-58, in LDC §§ 1.06.01.D.6 (for appeals of Official Interpretation) and 10.04.04 (for Type III administrative appeals), and under Chapter 1.C.3 of the Administrative Code, which allows the BZA to make final decisions on appeals. However, 12.A.6 Packet Pg. 314 Attachment: Motion to Dismiss SDP Appeal - Jurisdiction 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 2 amendments to the Code transferred the BZA’s authority over administrative appeals to the Hearing Examiner. 4. In 2013, the Board of County Commissioners (“BCC”) adopted Ordinance 2013- 25, creating the Office of the Hearing Examiner and establishing its duties. Pursuant to Code § 2- 87.1, “All type III appeals of administrative decisions or interpretations, as set forth in LDC Section 10.04.04, shall be heard by the Hearing Examiner.” (Emphasis added). In addition, the BCC adopted Code § 2-87.6, which states in part: All powers and duties expressly granted to the Hearing Examiner, either by this ordinance or through future resolutions, preempt the Collier County Planning Commission, or the Board of Zoning Appeals, as the case may be, with respect to the established procedures set forth in the Collier County Land Development Code. (Emphasis added). 5. This grant of authority is ratified in LDC § 8.10.00.A, which states “The Board of County Commissioners established the office of the Hearing Examiner by County Ord. No. 2013- 25, as it may be amended from time to time, with the powers and duties set forth therein.” (Emphasis added). 6. LDC § 10.04.04 states: Applications subject to Type III Review: The following applications are subject to Type III review: Variances; Administrative Appeals; Certificates of Appropriateness; conditional uses; nonconforming Use Amendments; Vested Rights; flood Variances; Parking Agreements. (Emphasis added). 7. The Collier County “Land Use Administrative Code” is adopted and amended by Resolution of the Board of County Commissioners. Chapter 9 of the Administrative Code covers the jurisdiction and procedures of the Hearing Examiner. The subsection for “Assignment” states: 12.A.6 Packet Pg. 315 Attachment: Motion to Dismiss SDP Appeal - Jurisdiction 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 3 Once the application is submitted to the County and deemed complete pursuant to Chapter 1 through 7 of the Administrative Code, as applicable, the following petitions shall be assigned to the Hearing Examiner: 1. Administrative Type III Appeal.” (Emphasis added). 8. FCC’s appeal of the SDP approval is a Type III administrative appeal, expressly assigned to the Hearing Examiner by Code § 2-87.1 and then expressly preempted pursuant to Code § 2-87.6 and the Administrative Code. Any authority of the BZA over an administrative appeal of an SDP has been expressly preempted, and the BZA lacks any jurisdiction over the appeal. WHEREFORE, the Grider Revocable Trust demands the BZA find it lacks jurisdiction over an appeal of a site development plan and remand Appeal PL20210001944 to the Hearing Examiner. Respectfully submitted, /s/ Robert K. Lincoln ROBERT K. LINCOLN Florida Bar No.: 0006122 Primary Email: Robert.Lincoln@flalandlaw.com Secondary Email: Amra.Dillard-Rickwa@flalandlaw.com 2055 Wood Street, Suite 206 Sarasota, FL 34237 T: (941) 681-8700 / F: (941) 363-7930 Counsel for Grider Revocable Living Trust NOEL J. DAVIES Fla. Bar No.: 100527 Davies Duke, PLLC 2375 Tamiami Trail N, Suite 306 Naples, FL 34103 Telephone: (239) 216-2792 Noel.Davies@daviesduke.com Co-Counsel for Grider Revocable Living Trust 12.A.6 Packet Pg. 316 Attachment: Motion to Dismiss SDP Appeal - Jurisdiction 10-1-21 (20268 : Isles of Capri Food Truck Park motions) 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically furnished via e-mail to the following this 1st day of October , 2021. GLENN BURHANS, JR. Bridget Smitha Christopher Clark 106 East College Avenue, Suite 700 Tallahassee, FL 32301 Telephone: (850) 329-4850 gburhans@stearnsweaver.com bsmitha@stearnsweaver.com crclark@stearnsweaver.com cabbuhl@stearnsweaver.com Counsel for FCC RICHARD D. YOVANOVICH Coleman Yovanovich & Koester, P.A. 4001 Tamiami Trail North, Suite 300 Naples, FL 34103 Telephone: (239) 435-3535 ryovanovich@cyklawfirm.com ddquintanilla@cyklawfirm.com Counsel for FCC JEFFREY KATZKOW HEIDI ASHTON-CISKO Collier County Attorney’s Office 3299 E. Tamiami Trail, Suite 800 Naples, FL 34112 Telephone: (239) 252-8400 Jeff.Katzkow@colliercountyfl.gov Heidi.Ashton@colliercountyfl.gov Counsel for Collier County, Florida /s/ Robert K. Lincoln ROBERT K. LINCOLN Florida Bar No.: 0006122 12.A.6 Packet Pg. 317 Attachment: Motion to Dismiss SDP Appeal - Jurisdiction 10-1-21 (20268 : Isles of Capri Food Truck Park motions) BEFORE THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA FCC BEACH & YACHT, LLC Appellant, APPEAL No. PL20210001944 v. COLLIER COUNTY, ADMINISTRATIVE APPEAL OF SITE DEVELOPMENT PLAN Appellee, PL20200001903 and GRIDER REVOCABLE TRUST, Opponent. ____________________________________/ RESPONSE TO GRIDER REVOCABLE TRUST’S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant FCC Beach & Yacht Club, LLC (“FCC”) responds to the Motion to Dismiss Appeal for Lack of Jurisdiction (“Motion”) filed by Opponent Grider Revocable Trust (the “Trust”), stating as follows: BACKGROUND 1. On July 29, 2021, Grider Revocable Trust (the “Trust”), applied and was granted approval of a site and development plan (PL20200001903) (the “SDP”) allowing for development of a food truck park on its property located on the Isles of Capri (the “Food Truck Park & Bar”). The Food Truck Park & Bar would serve food and alcohol to be consumed by patrons at outdoor seating, in the open field areas identified on the SDP, and/or at an outdoor bar and dance floor and surrounding areas. 2. As a nearby property owner aggrieved by the SDP approval, FCC filed an appeal to the Board of Zoning Appeals (“BZA”) pursuant to the process provided in section 250-58 of the 12.A.7 Packet Pg. 318 Attachment: Response to Motion to Dismiss SDP Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 2 Code of Laws (“Code”). The Trust filed its Motion arguing that the BZA lacks jurisdiction and requesting that the appeal be remanded to the Hearing Examiner. FCC does not object to the BZA remanding this appeal to the Hearing Examiner. Rather, FCC files this response to clarify that, should the BZA choose to remand, Code § 250-59, requiring a stay of all proceedings and work on the premises, continues to apply throughout the pendency of the appeal. LEGAL ARGUMENT 3. The Code delineates the authority of both the BZA and the Hearing Examiner. Among the powers of the BZA is the duty to “hear and decide administrative appeals where it is alleged there is error in any order, requirement, decision, interpretation or determination made by an administrative official in the enforcement of any zoning ordinance or regulation.” Code § 250- 56(a). In furtherance of this authority, Code § 250-58 provides a process by which aggrieved persons may appeal administrative decisions and determinations to the BZA. Separately, the Hearing Examiner is empowered to hear “all type III appeals of administrative decisions or interpretations, as set forth in LDC Section 10.04.04.” Code § 2-87.1. 4. The Trust argues that – despite Code § 250-56(a) and § 250-58 clearly delegating authority over administrative appeals to the BZA – the BZA is preempted from exercising jurisdiction because amendments to the Code transferred authority over administrative appeals to the Hearing Examiner. Motion ¶ 3. The Trust’s argument relies on the following language from Ordinance 2013-25, which is now Code § 2-87.6: To the extent authorized by law, by Resolution of the Board of County Commissioners, the Hearing Examiner may be assigned any and all other powers and duties that have previously been granted to the Collier County Planning Commission or the Board of Zoning Appeals, expressly excepting those powers reserved to the Collier County Planning Commission as the local planning agency (LPA), and land development regulation commission as required by F.S. §§ 163.3174 and 163.3194. All powers and duties 12.A.7 Packet Pg. 319 Attachment: Response to Motion to Dismiss SDP Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 3 expressly granted to the Hearing Examiner, either by this ordinance or through future resolutions, preempt the Collier County Planning Commission, or the Board of Zoning Appeals, as the case may be, with respect to the established procedures set forth in the Collier County Land Development Code. 6. For administrative appeals, Code § 250-59 provides that, “[w]hen an appeal from the decision of any administrative official has been filed with the administrative official, all proceedings and work on the premises concerning which the decision was made shall be stayed.” Code § 250-59 is very clear that an administrative appeal results in the administrative approval being stayed until the appeal is resolved. Accordingly, should the BZA elect to remand the appeal to the Hearing Examiner, the SDP and any further action on the SDP shall be stayed. 7. FCC declines to take a position on the Trust’s jurisdictional argument. However, in the event the BZA chooses to grant the Motion and remand this appeal to the Hearing Examiner, FCC requests that the BZA’s order expressly acknowledge the applicability of Code § 250-59 to this appeal. Code § 250-59 is unaffected by the adoption of Code § 2-87.6 and continues to apply regardless of who claims jurisdiction over this matter. CONCLUSION WHEREFORE, for the foregoing reasons, in the event the BZA chooses to grant the Trust’s Motion and remand this appeal to the Hearing Examiner, FCC requests that the BZA’s remand order expressly state that Code § 250-59 applies to this appeal. 12.A.7 Packet Pg. 320 Attachment: Response to Motion to Dismiss SDP Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) 4 Respectfully submitted this 5th day of October, 2021. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Glenn Burhans, Jr. Florida Bar No. 605867 Bridget Smitha Florida Bar No. 0709581 Erin Tilton Florida Bar No. 104729 106 East College Avenue, Suite 700 Tallahassee, FL 32301 Telephone: (850) 329-4850 Primary: gburhans@stearnsweaver.com bsmitha@stearnsweaver.com etilton@stearnsweaver.com Secondary: cabbuhl@stearnsweaver.com abrantley@stearnsweaver.com COLEMAN YOVANOVICH & KOESTER, P.A. s/ Richard D. Yovanovich Richard D. Yovanovich Florida Bar No. 782599 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103 Telephone: (239) 435-3535 Primary: ryovanovich@cyklawfirm.com Secondary: dquintanilla@cyklawfirm.com Counsel for FCC Beach & Yacht, LLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via e-mail this 5th day of October, 2021 to: Jeffrey Katzkow Heidi Ashton-Cisko Collier County Attorney’s Office 3299 E. Tamiami Trail, Suite 800 Naples, FL 34112 Jeff.Katzkow@colliercountyfl.gov Heidi.Ashton@colliercountyfl.gov Robert K. Lincoln Law Office of Robert K. Lincoln, P.A. 2055 Wood Street, Suite 206 Sarasota, FL 34237 Robert.Lincoln@flalandlaw.com S: Amra.Dillar-Rickwa@flalandlaw.com Noel J. Davies Davies Duke, PLLC 2375 Tamiami Trail N., Suite 306 Naples, FL 34103 Noel.Davies@daviesduke.com s/ Richard D. Yovanovich 12.A.7 Packet Pg. 321 Attachment: Response to Motion to Dismiss SDP Appeal re Jurisdiction (20268 : Isles of Capri Food Truck Park motions) BEFORE THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA FCC BEACH AND YACHT, LLC, Appellant v APPEAL No. PL20210001944 COLLIER COUNTY, and GRIDER ADMINISTRATIVE APPEAL OF REVOCABLE TRUST, SITE DEVELOPMENT PLAN Appellees PL20200001903 GRIDER REVOCABLE TRUST’S MOTION TO LIMIT RETROACTIVE APPLICATION OF ORDINANCE 2020-44 AND ANY DECISION ON FCC’S APPEAL OF OI PL20210000943 Grider Revocable Living Trust (the “Trust”), by and through undersigned counsel, m oves the Board of Zoning Appeals (the “BZA”) to limit the scope of issues related to Appeal No. 20210001944 by FCC Beach and Yacht, LLC (“FCC”) of Site Development Plan (SDP) PL20200001903, because as a matter of law, under the undisputed facts, (a) the Trust’s Zoning Verification Letter ZLTR-PL20200001955 (the “Trust Zoning Verification”) issued on October 26, 2020, is a binding and valid determination that a Food Truck Park is a permitted use, and (b) the BZA cannot retroactively apply FCC’s or its Appeal of OI PL20210000943 to the SDP approval for the Trust’s Food Truck Park. In support, the Trust states as follows: 1. The Trust is the applicant for SDP-PL20200001903 (the “Trust Site Plan”). The Trust held a pre application meeting with Staff on the SDP application on September 30, 2020 , which created file and application SDP-PL20200001903. The Trust filed the formal application documents on January 28, 2021. The SDP was approved on July 29, 2021. A copy of the approval letter is attached as Exhibit 1. FCC then appealed that approval, asserting one claim: that the Trust 12.A.8 Packet Pg. 322 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 2 was required to undergo the “comparable use” process contained in Collier County Land Development Code (“LDC”) § 10.02.06.K. 2. The Trust applied for a Zoning Verification Letter on September 30, 2020. The ZVL was issued on October 20, 2020, as ZLTR-PL20200001955 (the “Trust Zoning Verification”), confirming that a food truck establishment is permitted by right in the C-3 zone district as an “eating place” per “Standard Industrial Code” (“SIC”) Code 5812. A copy of the ZVL approval is attached as Exhibit 2. No one appealed ZLTR-PL20200001955. 3. For the Zoning Verification, the Trust used the established method required by LDC § 10.02.06(J) for a property owner to have the County determine whether a particular use is a permitted use and, the process required by LDC § 2.03.00 to determine if a use that is not permitted is allowed as a “comparable use.” When the Trust Zoning Verification was issued and not appealed, it became a binding determination of the Trust’s right to a Food Truck Park on the Trust’s Property pursuant to LDC § 10.02.06(J)(1)(a)(i), without any need for a comparable use determination. 4. The question of whether the Food Truck Park required a comparable use determination was raised during a Staff review of the Trust Site Plan. In a May 7, 2021, letter Anita Jenkins, the Division Director of the Planning and Zoning Division (the “Jenkins Letter”), expressly confirmed that, pursuant to the Trust Zoning Verification and prior decisions of the County, food trucks are an “eating place” set out in SIC Code 5812 and permitted in the C-3 zone district with no requirement for any comparable use determination. A copy of the Jenkins Letter is attached as Exhibit 3. Ms. Ashton-Cicko reviewed and approved the Jenkins Letter and it was then copied to both Mr. Klatzkow and Ms. Ashton - Cicko. See Exhibit 4. 12.A.8 Packet Pg. 323 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 3 5. On November 10, 2020, the Board of County Commissioners adopted Ordinance 2020-44 and Resolution 2020-203. Ordinance 2020-44 amended LDC § 2.03.00 to make “comparable use” determinations through a new process the Ordinance established as LDC § 10.02.06.K. Ordinance 2020-44 also amended the “comparable use” provisions in the C-3 zone district (and other districts) to reference LDC § 10.02.06.K. Ordinance 2020-44 became effective on November 17, 2020, when it was filed with the Florida Secretary of State. 6. Resolution 2020-203 amended the Administrative Code for Land Development to convert an existing procedure for determining comparable uses in a PUD into the general “comparable use determination” called for by new LDC § 10.02.06.K. 7. Critically, nothing in the language of Ordinance 2020-44 or Resolution 2020- 203 states any intent to apply the newly adopted provisions related to “comparable use determinations” to operate retroactively or invalidate previous determinations made in Zoning Verification Letters or other development orders. A statute or ordinance is presumed to operate prospectively absent language that clearly establishes that it is to apply retroactively. Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999). 8. On April 15, 2021, FCC filed its request for an Official Interpretation seeking a determination that (1) food truck parks are not a permitted use in the C-3 zone district, and (2) food truck parks cannot be approved through the comparable use process. The County issued OI PL20210000943 on August 4, 2021, rejecting both of FCC’s assertions. FCC then appealed that determination, arguing both that Food Truck Park is not an “eating place” permitted in the C -3 zone district, and that a Food Truck Park cannot be the subject of a comparable use determination. FCC contends the BZA determination on its appeal of the OI should app ly retroactively to the Trust Property and the prior approval of the Trust Site Plan at issue in this appeal. 12.A.8 Packet Pg. 324 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 4 9. Together, FCC’s two appeals are an after-the-fact, collateral attack on the Trust’s ZVL, despite its failure to appeal the ZVL. FCC’s appeals not only seek to hold that a Food Truck Park is not an “eating place” permitted under LDC § 2.03.03.C.1.a(30), but also demand a Food Truck Park cannot be approved as a “comparable use” under LDC § 2.03.03.C.1.a(30). If the BZA grants FCC’s appeal of the OI, every prior staff approval of a Food Truck or Food Truck Park will be affected, even though those approvals were never appealed. FCC demands the BZA overturn those historical staff decisions - which were reviewed by the Office of the County Attorney - and now retroactively render all of those previously approved uses either illegal or non-conforming. 10. Nothing in the provisions governing official interpretations supports or permits using the OI process to achieve such a result. Nothing in the language of Ordinance 2022-44 compels or allows that result. Therefore, even if the BZA were to grant FCC’s appeal of OI PL20210000943, that decision must be limited to apply prospectively, and cannot be retroactively applied to the Trust’s ZVL and SDP, or to any other previously approved food truck park. 11. In addition, FCC seeks to use the OI process in an unprecedented and impermissible manner: to foreclose the “comparable use” process for a Food Truck Park, even though no such application has been made, and even though that use has already been the subject of a valid, 12. In sum: a. As a matter of law, the Trust Zoning Verification’s determination that a Food Truck Park is an “eating place” (SIC 5812) permitted in the C-3 zone district for the Trust’s Property is a valid and binding determination for the Trust’s Property. b. As a matter of law, the later adoption of Ordinance 2020-44 and Resolution 2020-203 does not invalidate the Trust Zoning Verification and its determination that a 12.A.8 Packet Pg. 325 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 5 Food Truck Park is an “eating place” (SIC 5812) permitted in the C-3 zone district for the Trust’s Property. c. As a matter of law, because Ordinance 2020-44 contains no language applying it retroactively, as a matter of law, FCC’s request for an Official Interpretation cannot be applied retroactively to the Trust’s SDP Application, or to other Food Truck Parks, even if the BZA were to grant FCC’s appeal. WHEREFORE, the Grider Revocable Trust demands the BZA enter an order governing these proceedings and determining: 1) The Trust Zoning Verification’s determination that the Food Truck Park is a permitted use, rather than comparable use, was not appealed and is a binding determination that a Food Truck Park is a permitted use on the Trust Property. 2) The Trust Zoning Verification is not invalidated by Ordinance 2020-44 or Resolution 2020-203. 3) Even if the BZA were to grant FCC’s Appeal of the Official Interpretation, it cannot apply any such decision retroactively to the Trust’s SDP Application, or to other prior Food Truck approvals. Respectfully submitted, /s/ Robert K. Lincoln ROBERT K. LINCOLN Florida Bar No.: 0006122 Primary Email: Robert.Lincoln@flalandlaw.com Secondary Email: Amra.Dillard-Rickwa@flalandlaw.com 2055 Wood Street, Suite 206 Sarasota, FL 34237 T: (941) 681-8700 / F: (941) 363-7930 Counsel for Grider Revocable Living Trust 12.A.8 Packet Pg. 326 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 6 NOEL J. DAVIES Fla. Bar No.: 100527 Davies Duke, PLLC 2375 Tamiami Trail N, Suite 306 Naples, FL 34103 Telephone: (239) 216-2792 Noel.Davies@daviesduke.com Co-Counsel for Grider Revocable Living Trust CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically furnished via e-mail to the following this 4th day of October , 2021. RICHARD D. YOVANOVICH Coleman Yovanovich & Koester, P.A. 4001 Tamiami Trail North, Suite 300 Naples, FL 34103 Telephone: (239) 435-3535 ryovanovich@cyklawfirm.com ddquintanilla@cyklawfirm.com Counsel for FCC JEFFREY KATZKOW HEIDI ASHTON-CISKO Collier County Attorney’s Office 3299 E. Tamiami Trail, Suite 800 Naples, FL 34112 Telephone: (239) 252-8400 Jeff.Katzkow@colliercountyfl.gov Heidi.Ashton@colliercountyfl.gov Counsel for Collier County, Florida /s/ Robert K. Lincoln ROBERT K. LINCOLN Florida Bar No.: 0006122 12.A.8 Packet Pg. 327 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) July 29, 2021 Davidson Engineering, Inc. 4365 Radio Road Suite 201 Naples, FL 34104 Re: Final Site Development Plans Approval Isle of Capri - Food Truck Park (SDP) Project Number: PL20200001903 Dear Applicant - Davidson Engineering, Inc: THIS IS YOUR PERMIT AND MUST BE POSTED ONSITE! This office has reviewed the Final Site Development Plan for the referenced project and has no objection to the construction of water,sewer,paving,and drainage aspects of the project subject to the following stipulations: ·By receipt and acceptance of this approval,the petitioner acknowledges that a pre-construction meeting is required by code for this project.If the pre-construction meeting is not held prior to the beginning of construction,the project will be cited and shut down until the required meeting is held. Even with an Early Work Authorization a pre-construction meeting is required. General Conditions ·CHANGES IN USE AND/OR DESIGN OF THESE SITE AND ARCHITECTURAL PLANS ARE NOT AUTHORIZED WITHOUT WRITTEN APPROVAL BY THE COUNTY.CHANGES SHALL REQUIRE RE–REVIEW IN ACCORDANCE WITH ALL CURRENT COUNTY CODES INCLUDING PARKING FACILITIES, UTILITIES, TRANSPORTATION, ENVIRONMENTAL REQUIREMENTS AND THE LIKE. ·A preliminary inspection and approval of the infrastructure for multi-family residential must be done by Engineer Inspections prior to any Certificate of Occupancy being granted. ·Permits from other agencies having jurisdiction over this project shall be obtained prior to start of construction. ·Please call Mr.David Crane at (239)252-6820 to schedule a pre–construction meeting a minimum of 48 hours prior to start of construction. ·This Final Site Development Plan is approved due to the issuance of a Certificate of Public Facility Adequacy #21-0033 with respect to Collier County Ordinance 93-82. ·All construction activities permitted by this letter shall only occur during the following times: 6:30 A.M.to 7:00 P.M.,Monday through Saturday;no work is permitted on Sundays and the following holidays:New Year's Day,Memorial Day,4th of July,Labor Day,Thanksgiving Day, Christmas Day. ·The review and approval of these improvement plans does not authorize the construction of required improvements, which are inconsistent with easement of record. ·Upon completion of the infrastructure improvements associated with a site development plan and prior to the issuance of a certificate of occupancy,the engineer shall provide a completion certificate as to the improvements,together with all applicable items referenced in Section 10.02.05 of this code including electronic disk.Upon a satisfactory inspection of the improvements,a certificate of occupancy may then be issued. 12.A.8 Packet Pg. 328 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) Zoning Conditions ·SIGNAGE RESTRICTIONS:Please be advised that any permanent sign (wall,ground,monument, directory,etc.)requires a separate building permit and must meet the provisions of the Collier County Land Development Code,Section 5.06.00,and/or the applicable provisions of the governing Planned Unit Development (PUD)document,regardless of any sign placement,dimensions or color depicted on the site and/or architectural plans approved by this letter. ·All PUD related stipulations shall apply to this project. Utility Conditions ·See attached Exhibit "A" ·Written confirmation from that the water/sewer facilities have been accepted and placed in service must be provided prior to issuance of a Certificate of Occupancy. ·“APPROVAL OF THESE PLANS DOES NOT CONSTITUTE APPROVAL OF THE METER SIZE. SIZING OF THE METER SHALL BE DONE WITH THE APPROVAL OF PUBLIC UTILITIES ENGINEERING DIRECTOR OR HIS DESIGNEE,BASED ON DOCUMENTATION RECEIVED FROM THE ENGINEERING OF RECORD.THE METER DETAIL SHALL BE SUBMITTED TO ENGINEERING REVIEW SERVICE FOR APPROVAL PRIOR TO INSTALLATION”. ·No water or sewer utility construction shall commence until proper DEP permits have been obtained. Subdivision Conditions ·All work shall be in accordance with applicable Collier County ordinances and rules and regulations of other entities having jurisdiction over the project. Environmental Conditions ·Site clearing is conditioned to the stipulations contained on the approved plans. ·Required permits for listed species relocation must be provided to staff at the pre-construction meeting. ·Silt fencing must be installed prior to any mechanical clearing. ·Exotic vegetation must be removed prior to preliminary acceptance as required on the approved plans. Water Management Conditions ·All work shall be in accordance with applicable State or Federal rules and regulations. ·Work area shall be properly barricaded with hay bales and/or silt screens during the entire time of construction, to prevent any siltation during construction. ·Separate excavation permit must be obtained. ·The engineer of record,prior to issuance of a Certificate of Occupancy,shall provide documentation from the stormwater maintenance entity that it has been provided information on how the stormwater system works and their responsibility to maintain the system. ·This project shall be permitted by SFWMD. ·Whether or not this project was permitted by SFWMD,dewatering shall not occur without a dewatering permit from the South Florida Water Management District. Addressing Conditions ·Pursuant to Ordinance No. 07-62, no proposed subdivision, street, building, condominium, or development may utilize the same name or a similar sounding name as any existing subdivision, street, building, condominium, or development, except that the major street within a subdivision may utilize the name of the subdivision. Any changes to the project name shall be reviewed and approved by Growth Management Department/Planning and Regulation Addressing Section. 12.A.8 Packet Pg. 329 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) Landscaping Conditions ·At the time of Preliminary Acceptance, the Landscape Architect shall certify that the landscaping has been installed in substantial accordance with the approved plans and specifications. The certification shall be in a form approved by the County Manager or his designee. Fire Protection Conditions ·Please note that prior to the accumulation of combustible building materials on site,proposed fire hydrants must be operable with the minimum required fire flows and improved stabilized emergency apparatus access ways (min. 20' wide) must be available to within 100' of the structures. ·No fire appliances shall be obstructed, visually or functionally, by vegetation. Additional Stipulations ·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. This permit is conditioned on all other applicable state or federal permits being obtained before commencement of the development. ·Building Review and Permitting - If boat docks are added to the site in the future, a dry firefighting standpipe system will be required. NFPA 1 MastrobertoThomas 02/10/2021 11:47 AM ·Development Review - A pre-construction meeting is required prior to construction of water and/or sewer improvements. Contact David Crane at (239) 252-6820 or David.Crane@colliercountyfl.gov. All preliminary and final inspections of water and/or sewer improvements shall be requested in writing at least 48 hours ahead of time. Contact Joe Bianchi at (239) 252-2391 or Joe.Bianchi@colliercountyfl.gov. ·Development Review - This approval does not constitute approval by Marco Island Utilities (MIU). A letter of approval from MIU must be submitted prior to scheduling the pre-construction meeting. ·Environmental Services - Landscape installation and construction activities are to be completed outside of Burrowing Owl nesting season (2/15 to 7/10) along the west boundary of the project property. BrownCraig 07/16/2021 ·Environmental Services - The preserve offsite payment receipt for $7000 paid to Conservation Collier must be provided at Pre-construction meeting. BrownCraig 07/16/2021. ·Transportation Planning 07/19/2021 Informational Comment: COUNTY ROW PERMIT - County ROW permit is required for any construction/maintenance work proposed within any County public roadway ROW. For the purpose of establishing County ROW permit fees for existing access upgrades, the project is considered a small development (less than 600 new vehicle trips per day). A maintenance of traffic (MOT) plan will be required with the ROW permit application. The estimated duration of sidewalk closure will be needed to determine ROW permit fees. ·Transportation Planning 07/19/2021 Stipulation: TIS – TIS titled “Traffic Impact Study Isles of Capri Food Truck”, dated 06/20/2021, is approved as the basis for transportation concurrency (adequacy of roadway capacity) and for trip banking (reservation of road capacity) for 9 Food Cart Pods and 4,267 SF of Fast Casual Restaurant use. Note: As a number of categories were considered for land use codes, with LUC 926 and LUC 930 being determined to be the closest fit with SF being quantified as the basis for trip estimation, additional transportation mitigation may be required depending on actual site operations. PURSUANT TO HB 503, PLEASE COMPLETE THE ATTACHED AFFIDAVIT OF COMPLIANCE AND PROVIDE TO CLIENT SERVICES STAFF (252-2400). INCLUDE THE BALANCE OF ANY OUTSTANDING INSPECTION FEES TOGETHER WITH ANY REQUIRED STATE OR FEDERAL PERMITS. UPON PROCESSING THE AFFIDAVIT OF COMPLIANCE, A PRE-CONSTRUCTION MEETING MAY BE SCHEDULED. 12.A.8 Packet Pg. 330 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) Be advised that this approval automatically expires in thirty-six (36)months pursuant to Collier County Land Development Code Section 10.02.03.H.2. The expiration date is July 29, 2024. Please call if you have any questions or need any additional information. Sincerely, Development Review Division Growth Management Department 2800 N. Horseshoe Dr. Naples, Florida 34104 239-252-2400 12.A.8 Packet Pg. 331 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) EXHIBIT "A" Isles of Capri Food Truck Park SDP-PL20200001903 1. All on-site water and gravity sewer, pump station and force main shall be owned, maintained and operated by the applicant, his successors or assigns. 2. Owner should have backflow prevention assembly certified by Public Utilities Department, Water Division prior to preliminary acceptance of any water main, and tested on an annual basis by a certified AWWA backflow prevention device technician with results submitted directly to the Collier County Utilities Water Operations Director. Failure to meet the requirement for the annual certification will result in termination of water service. Should the backflow prevention device fail for any reason, the developer is required to have the backflow prevention device repaired immediately. 3. Representatives of the Growth Management Department (GMD), Engineering Services Division are to meet with your office and the Contractor for a pre-construction conference. Scheduling can be arranged by contacting David Crane at 239-252-6820 or David.Crane@colliercountyfl.gov. Advise in writing with 48 hours notice of time and date. Conference shall be conducted at the Growth Management Department Building. Meeting includes both, site and utilities, Pre-Construction items. Owner, Developer, Engineer-of-Record, General, Site, and Utilities contractors are encouraged to attend. 4. Inspections during construction required by the Collier County Public Utilities, that must be coordinated by the Public Utilities Department, Water Division are listed below. Scheduling of date, time, method and material can be arranged by calling 239-775-2007 with a minimum of 48 hours written notice. a) Usage of water from the District water facilities for filling, flushing and testing purposes. Prior approval of time and method of usage is mandatory. b) Flushing, using approved methods and materials for all water mains. c) Bacteriological sampling of all water mains. d) Testing, clearance and certification of backflow device. e) Chlorination of water lines and reflushing of line after chlorination 5. Inspections during construction required by the Public Utilities Department, that must be coordinated through GMD, Engineering Services Division, are listed below. Time and date can be arranged by contacting Joe Bianchi at Joe.Bianchi@colliercountyfl.gov. A minimum of 48 hours written notice is required to arrange scheduling. a) Hot taps to potable water lines larger than 6” and wastewater systems lines greater than 4”. b) Master meter and bypass piping. c) Jack & Bore casings. d) Pressure tests. e) Infiltration/Exfiltration tests. f) Lift station installation, prior to cover-up and start-up. g) Lift station start-up. 12.A.8 Packet Pg. 332 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) Exhibit "A" Page 2 h) Lamping of sewer lines. i) Pigging and flushing of wastewater lines, force mains, potable water mains and non- potable irrigation lines. Note: full bore flushing and pigging of potable water lines need only Water Department inspection. j) Television videotaping of wastewater lines at end of construction and the warranty period ("in-office review"). k) Conflict construction. l) Connections to existing potable water, non-potable irrigation water and wastewater systems. m) 8” diameter or larger casing installations. n) Other special requirements as specified by the County staff at the time of construction document approval. o) Installation of temporary meters/backflows. p) Hot taps to any water concrete mains, pressure tests on lines 20” and greater, and connections to existing potable systems greater than 12” need to be inspected by the Water Department and GMD. q) Fire flow testing. 6. Be advised that it is your responsibility to coordinate the above tasks with the Public Utilities Department and Engineering Services Division, including approval of schedules, specific procedures, methods and materials. 7. Prior to the conveyance of documents for acceptance by the Board of County Commissioners, the following shall occur: a) TV of entire gravity system. 8. All inspections of the completed utility work prior to the conveyance shall be coordinated through GMD, Engineering Services Division with a 48 hour written notice requesting the facility inspection. Time and date can be arranged by contacting Lucia Martin at 239-252-2279 or lucia.martin@colliercountyfl.gov. 9. Prior to the issuance of Certificates of Occupancy and/or final acceptance of this project into the County system, the following shall be completed: a) Actual field testing of water mains for domestic and fire flow demands, shall occur. Final approval and acceptance of the project is contingent upon joint approval by the applicable Fire Control District, GMD - Engineering Services Division and Public Utilities Department. 10. If this project requires a water meter 2" or less to be set by the County Public Utilities Department on existing main; the meter may be set prior to board acceptance of utilities. Certificate of Occupancy will be withheld until such time as utilities facilities have been accepted. 12.A.8 Packet Pg. 333 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) Exhibit "A" Page 3 11. Attached is a copy of the Public Utilities Department checklist which indicates the items which must be submitted upon completion of the proposed utility facilities for acceptance by the Board of County Commissioners. 12. Approval of the construction drawings as shown DOES NOT CONSTITUTE APPROVAL OF THE METER SIZING as shown. The Public Utilities Department shall size the meters at time of application. 13. If there are any changes made to the approved construction plans by the FDEP, the changes shall be resubmitted to GMD, Engineering Services Division for additional review and approval. 12.A.8 Packet Pg. 334 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) Page 1 of 3 Rev. 7/2018 Utilities Conveyance Checklist POTABLE WATER, NON-POTABLE IRRIGATION WATER AND WASTEWATER FACILITIES ACCEPTANCE Today’s Date: July 7, 2021 Project Name: ISLES OF CAPRI FOOD TRUCK PARK Original Project No. (AR/PL): SDP-PL20200001903 Utility PL#: Submittal Requirements N/A In review Item accepted Item Needed Notes 1. Final Utility Acceptance Application 2. Addressing Checklist (ID number or Folio number of Property) Legal Documents N/A In review Item accepted Item Needed Notes 1. Attorney’s Affidavit 2. Owner’s Affidavit 3. Warranty Deed/Bill of Sale with Exhibit B per Utilities Standards and Procedures Ordinance Section 10.2.6 4. Utilities Facilities Securities Subordination (required when any security interest in the utility facilities/systems is involved). UCC-1(s) can be subordinated by a Subordination or by use of UCC-3(s) if not released by Subordination. 5. Deed of Utility Easement - Copy of last Deed that conveyed title of the Associated Real Property and Copy of all Utility Easements then being conveyed to the County, including legal description with Surveyor’s Sketch of Easement. (Utility easements are not required provided all utility facilities then being conveyed are in public right-of way, are in then existing utility easements, or are in CUEs) 6. Utilities Performance Security (UPS) 10% of Total Cost plus Final Obligations cash bond of not less than $4,000 (AR-5939 & above) 7. Final Release of Lien from Utility Contractor for the system(s) or portion(s) thereof constructed 8. Facilities Lease (when applicable) 12.A.8 Packet Pg. 335 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) CHECKLIST WATER & SEWER FACILITIES ACCEPTANCE COUNTY ORDINANCE 97-17, AS AMENDED Page 2 Page 2 of 3 Rev. 07/2018 9. Facilities Lease (including Sub-Developer) use Form 10.1 Tests, Certifications and Supplemental Documents N/A In review Item accepted Item Needed Notes 1. Sewer Video of constructed gravity sewer (Sewer Report & Master Utility Sheet) 2. Certification of pressure testing of wastewater force mains by Engineer of Record 3. Certification of the infiltration/exfiltration tests for the sewer lines by Engineer of Record 4. Coating certification from the manufacturer or a professional testing laboratory for all manholes, wet wells and valve vault. 5. Lift station(s) start up report(s) 6. Electrical Contractor’s certification of Lift Station electric service wire sizing and voltage drop pursuant to National Electrical Code Specifications 7. Start-up and successful testing of Data Flow telemetry equipment (AR-7936 & above) 8. Certification of pressure testing of water and non-potable irrigation mains by Engineer of Record 9. Letter by Engineer certifying that: · All water, non-potable irrigation and/or sewer facilities are located within the public right-of-way or dedicated easements · All the utilities system(s), or portion(s) thereof, has been constructed in accordance with County Ordinances and Regulations, including the required color for piping 10. One year (1) Warranty on work performed and system(s) or portion(s) thereof installed by Utilities Contractor 11. Engineer’s Final Payment Confirmation 12. 13. DEP Certification and copy of General Permit for WATER facilities (including interim facilities, if applicable); DEP WATER Certification approval to be forwarded when received 12.A.8 Packet Pg. 336 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) CHECKLIST WATER & SEWER FACILITIES ACCEPTANCE COUNTY ORDINANCE 97-17, AS AMENDED Page 3 Page 3 of 3 Rev. 07/2018 14. 15. DEP Certification and copy of General Permit for SEWER facilities (including interim facilities, if applicable); DEP SEWER Certification approval to be forwarded when received 16. DEP Certification and copy of General Permit for (RECLAIMED) NON- POTABLE IRRIGATION WATER facilities (including interim facilities, if applicable); In-service Letter to be forwarded when received 17. Lab results on bacteriological tests for potable water mains 18. Satisfactory Test Reports and Certification of backflow device by Certified Laboratory. 19. Verification of Final Cost (Include materials and labor, misc.) Cost breakdown – Contributory Assets for County/Private Materials (materials only) (i.e. detailed quantities, sizes, unit cost, total cost, etc) 20 Letter from the Fire District regarding ownership and maintenance of fire hydrants 21. Signed copy of field fire flow testing by the applicable Fire Control District Engineering Documents N/A In review Item accepted Item Needed Notes 1. One (1) complete set of Record Drawings to include all utilities and all related underground work signed and sealed by the Engineer of Record for potable water, non-potable irrigation water and / or wastewater system(s) or portion(s) thereof 2. One (1) computer-generated disk of Record Drawings in CAD and PDF format in accordance with Section 10.4: Record Drawings of the Utilities Standards and Procedures Ordinance 3. Longitude and latitude shall appear on detail sheet. (AR-7936 & above) Office Use Only below this line W W/S S IRR 12.A.8 Packet Pg. 337 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) Zoning Division ● 2800 North Horseshoe Drive ● Naples, FL 34104 ● 239-252-2400 ● www.colliercountyfl.gov October 20, 2020 Jessica Harrelson, AICP Davidson Engineering, Inc. 4365 Radio Rd, Suite 201 Naples, FL 34104 ZLTR-PL20200001955; Zoning Verification Letter for a group of vacant and developed property located on the Isle of Capri AKA Isles of Capri Business Section lots 485, 486 & 530-548 in Section 32, Township 51, Range 26 unincorporated Collier County, Florida. Property ID/Folio Number: 52502680002, 52502560009, 52501480009, 52501440007, 52502720001, 52502960007, 52503000005, 52503040007 comprising of +/-2.89 acres. Ms. Harrelson, This letter is in response to a Zoning Verification Letter (ZLTR) Application that you submitted on or about September 30th, 2020. The applicant has requested verification of the questions listed below in bold print, which are followed by Staff’s responses. Questions: 1. Is the described “food truck Park” permitted on the subject properties (with and without a bar)? According to the official zoning map the subject properties are located within the Commercial Intermediate (C-3) zoning district. This district permits restaurants/food truck establishments (SIC code 5812) by right but requires a conditional use for a bar/drinking establishment (SIC code 5813). Since the food trucks are privately owned and will be separate from the drinking establishment, they will be permitted by right, but the bar use will require a separate conditional use approval. 2. What is the required parking calculation for the proposed “food truck park” at the subject location (with and without a bar)? The required parking will be as follows: Restaurant/food truck areas: 1 space per 200 sq. ft. of non-public use area plus 1 space per 2 seats Bar area: 1 per 50 sq. ft. plus 1 per 75 sq. ft. for any outdoor eating/drinking areas 3. Can boat docks count towards meeting required parking spaces, if the docks are not leased or used for any other purpose? Yes, Credit for boat slip parking is allowed where the slips have all necessary permits and are located on navigable waterways, using the formula 1 boat slip = 1 vehicle space, provided that each and all boat slips credited shall not be leased or rented for boat storage or utilized for any purpose other than customers frequenting said restaurant. The information presented in this verification letter is based on the Collier County LDC and/or Growth Management Plan in effect as of this date. It is possible that subsequent amendment(s) to either of these documents could affect the validity of this verification letter. It is also possible that development of the subject property could be affected by other issues not addressed in this letter, such as, but not limited to, 12.A.8 Packet Pg. 338 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) Zoning Verification Letter ZLTR-PL20200001955 Page 2 of 2 Zoning Division ● 2800 North Horseshoe Drive ● Naples, FL 34104 ● 239-252-2400 ● www.colliercountyfl.gov concurrency related to the provision of adequate public facilities, environmental impact, and other requirements of the Collier County LDC or related ordinances. This letter represents a determination of Zoning Services Section staff. Should you disagree with this determination, you may request an Official Interpretation by the Zoning Director of the provisions of the Land Development Code pursuant to Sections 1.06.01.A and 10.02.02.F.1 of that Code. The fee for an Official Interpretation is identified in the most recent GMD Fee Schedule Resolution as approved by the Board of County Commissioners. To obtain copies of any document referenced herein, please contact Kathleen VanSickle with the GMD Records Section at (239)252-2536. The LDC may be viewed online at www.municode.com / Municode Library / Florida / Collier County. Validated Ordinances may be viewed online via the Clerk of Court’s website, www.collierclerk.com / Records Search / BMR Records / Boards, Minutes, Records / BMR Validated Ordinances. Disclaimer: Issuance of a development permit by the County does not 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. All other applicable state or federal permits must be obtained before commencement of the development. Should you require additional information, please do not hesitate to call my office at (239) 252-2471. Researched and prepared by: Reviewed by: __________________________________ ___________________________________ Parker Klopf, Planner Raymond Bellows, Zoning Manager Zoning Services Section Zoning Services Section 12.A.8 Packet Pg. 339 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 340 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 341 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 342 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 343 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 344 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 345 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 346 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 347 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 348 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 349 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 350 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 351 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 352 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 353 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 354 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 355 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8Packet Pg. 356Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park LAST REVISION: ZONING ___________________ OTHER ___________________SUBDIVISON INDEX ATTEST___________________________CL ER K COLLIER COUNTY, FLORIDA TWP 51S RNG 26E SEC(S) 32 NO 1/2 MAP NUMBER: BY___________________________CHAIRMAN COMMUNITY DEVELOPMENT DIVISION 1 1 1 22 1 2 2 ST NON-ST C-3 RMF-16 RSF-3 RSF-3 ARM OF TARPON BAYPARKSAMAR LANE PARK701 700 699 698 697 696 695 694 693 692 691 690 689 688 687686 685 684 683 682 681 680 679 678 677 676 675 674 673 672671 670 669 668 667 666 665 664 663 662 661 660 659 658657 656 655 654 653 652 651 650 649 648 647 646 645 644643 642 641 640 639 638 637 636 635 634 633 632631 630 629 628 627 626 625 624 623 622 621 620619 618 617 616 615 614613 612 611 610 609 608607 606 605 604 603602 601 600 599 598597 596 595 594 593 592 591 590 589 588 587 586585584583582 581 580 579 578 577 ANTIGUA ST.GRIFFIS HIGHWAY SAN JUAN AVE.SAMAR AVE.PANAY AVE.LUZON AVE.GRENADA AVE.CRISTOBAL ST. 455 504 503 502 501 544 543 542 541 540 539 538 537 5495 4 8 547 546 545557556555554553552551 536535534533532531530529528527526525524523522521520519518517516515514513512511510509508507506505500499498497496495494493492491490489488487486485484483482481480479478477476475474473472471470469468467466465464463462461460459458457456576575574573572571570569568567566565564563562561560559558454453452451450449448447446445444443442 TARPON BAY SNOOK BAY JOHNSON BAY KON TIKI DRIVE GRIFFIS HIGHWAY PARKPARKPUBLIC A-ST A A-ST BD1 PUg2 550NUA 3 4 4 4 BD5 A-ST 4 BD6 V 7 BD 8 V 9 BD10 BD 11 12BD V13 14BD ST NON-ST NON-STST STNON-ST A-ST 4 32 32 15BD 16BD 17BD BD18 BD19BD20 $NO. NAM E P.B. Pg.1 ISLES OF CAPRI NO.3 3 662 ISLES OF CAPRI BUSINESS DISTRICT 3 52345678910 NO. NAM E P.B. Pg.11121314151617181920 1632N 1632S1631N 1633N1629S The Historic/Archaeological Probability Maps are the officialCounty source designating historic or archaeologic resources.ZONING NOTES1 10-5-89 BD-89-12 89-142 PU-89-16 (EXPIRED)3 5-22-90 NUA-90-3 90-2724 LCD-915 6-21-90 BD-90-3 90-46 7-16-92 BD-92-3 92-117 10-27-92 V-92-21 92-5888 3-18-93 BD-93-1 93-89 9-7-93 V-93-12 93-37010 6-16-94 BD-94-7 94-1911 11-17-94 BD-94-16 94-4012 6-15-95 BD-95-4 95-2313 1-23-96 V-95-24 96-3014 3-6-97 BD-97-2 97-615 6-1-00 BD-00-10 00-1716 10-5-00 BD-00-19 00-2817 11-20-03 BD-03-AR-4560 03-1818 6-15-06 BD-06-AR-9291 06-0419 8-20-09 BD-09-AR-14226 09-0320 9-6-12 BDE-PL-11-644 CCPC 12-08THIS IS TO CERTIFY THAT THIS IS A PAGE OF TH EOFFICIAL ZONIN G ATLAS REFER RED TO AND ADOPTEDBY REFERENC E BY OR DINANC E NO. 04-41 OF THECOUNTY OF COLLIER, FLOR IDA, ADOPTED JUNE 22, 2004,AS AMENDED BY THE ZONING NOTES AND SU BDIVISIONINDEX REFERENC ED HEREON. INDICATES SPECIAL TR EATMENT OVERLAY 0 400 SCALE3/10/202012.A.8 Packet Pg. 357 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 358 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 359 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 360 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 361 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 2.03.03 - Commercial Zoning Districts … 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. Amusement and recreation services, indoor (7999 martial arts, yoga and gymnastics instruction, gymnastic schools, and recreation involving physical fitness exercise only). 5. Animal specialty services, except veterinary (0752, excluding outside kenneling ). 6. Apparel and accessory stores (5611—5699) with 5,000 square feet or less of gross floor area in the principal structure . 7. Architectural services (8712). 8. Auditing (8721). 9. Auto and home supply stores (5531) with 5,000 square feet or less of gross floor area in the principal structure . 10. Automobile Parking, automobile parking garages and parking structures (7521 — shall not be construed to permit the activity of "tow-in parking lots"). 11. Automotive services (7549) except that this shall not be construed to permit the activity of "wrecker service (towing) automobiles, road and towing service." 12. Banks, credit unions and trusts (6011—6099). 13. Barber shops (7241, except for barber schools). 14. Beauty shops (7231, except for beauty schools). 15. Bookkeeping services (8721). 12.A.8 Packet Pg. 362 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 16. Business associations (8611). 17. Business consulting services (8748). 18. Business credit institutions (6153—6159). 19. 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). 20. Child day care services (8351). 21. Churches . 22. Civic, social and fraternal associations (8641). 23. Commercial art and graphic design (7336). 24. Commercial photography (7335). 25. Computer and computer software stores (5734) with 5,000 square feet or less of gross floor area in the principal structure . 26. Computer programming, data processing and other services (7371—7379). 27. Credit reporting services (7323). 28. Direct mail advertising services (7331). 29. Drycleaning plants (7216, nonindustrial drycleaning only). 30. Drug stores (5912). 31. 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. 32. Educational plants and public schools subject to LDC section 5.05.14. 33. Engineering services (8711). 34. Essential services , subject to section 2.01.03. 35. Federal and federally-sponsored credit agencies (6111). 36. Food stores (groups 5411—5499) with 5,000 square feet or less of gross floor area in the principal structure . 37. Funeral services (7261, except crematories). 38. Garment pressing, and agents for laundries and drycleaners (7212). 39. Gasoline service stations (5541, subject to section 5.05.05). 40. General merchandise stores (5331—5399) with 5,000 square feet or less of gross floor area in the principal structure . 12.A.8 Packet Pg. 363 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 41. Glass stores (5231) with 5,000 square feet or less of gross floor area in the principal structure . 42. 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. 43. Hardware stores (5251) with 1,800 square feet or less of gross floor area in the principal structure . 44. Health services, offices and clinics (8011—8049). 45. Home furniture and furnishings stores (5712—5719) with 5,000 square feet or less of gross floor area in the principal structure . 46. Home health care services (8082). 47. Household appliance stores (5722) with 5,000 square feet or less of gross floor area in the principal structure . 48. Insurance carriers, agents and brokers (6311—6399, 6411). 49. Labor unions (8631). 50. Landscape architects, consulting and planning (0781). 51. Laundries and drycleaning, coin operated — self service (7215). 52. Laundries, family and commercial (7211). 53. Legal services (8111). 54. Libraries (8231). 55. Loan brokers (6163). 56. Management services (8741 and 8742). 57. Marinas (4493), subject to section 5.05.02. 58. Membership organizations, miscellaneous (8699). 59. Mortgage bankers and loan correspondents (6162). 60. Museums and art galleries (8412). 61. Musical instrument stores (5736) with 5,000 square feet or less of gross floor area in the principal structure . 62. Paint stores (5231) with 5,000 square feet or less of gross floor area in the principal structure . 63. Personal credit institutions (6141). 64. 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. 65. Personnel supply services (7361 and 7363). 66. Photocopying and duplicating services (7334). 67. Photofinishing laboratories (7384). 68. Photographic studios, portrait (7221). 69. Physical fitness facilities (7991; 7911, except discotheques). 12.A.8 Packet Pg. 364 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 70. Political organizations (8651). 71. Professional membership organizations (8621). 72. Public administration (groups 9111—9199, 9229, 9311, 9411—9451, 9511—9532, 9611—9661). 73. Public relations services (8743). 74. Radio, television and consumer electronics stores (5731) with 5,000 square feet or less of gross floor area in the principal structure . 75. Radio, television and publishers advertising representatives (7313). 76. Real Estate (6531—6552). 77. Record and prerecorded tape stores (5735) with 5,000 square feet or less of gross floor area in the principal structure . 78. Religious organizations (8661). 79. 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). 80. Retail nurseries, lawn and garden supply stores (5261) with 5,000 square feet or less of gross floor area in the principal structure . 81. 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 . 82. Secretarial and court reporting services (7338). 83. Security and commodity brokers, dealer, exchanges and services (6211—6289). 84. Shoe repair shops and shoeshine parlors (7251). 85. Social services, individual and family (8322 activity centers, elderly or handicapped only; day care centers, adult and handicapped only). 86. Surveying services (8713). 87. Tax return preparation services (7291). 88. Travel agencies (4724, no other transportation services). 89. United State Postal Service (4311, except major distribution center). 90. Veterinary services (0742, excluding outdoor kenneling ). 91. Videotape rental (7841) with 5,000 square feet or less of gross floor area in the principal structure . 92. Wallpaper stores (5231) with 5,000 square feet or less of gross floor area in the principal structure . 93. 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. 94. 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. 95. Any other commercial use or professional services which is comparable in nature with the foregoing uses including those that exclusively serve the administrative as 12.A.8 Packet Pg. 365 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) opposed to the operational functions of a business and are associated purely with activities conducted in an office. 96. 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. 97. 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, outdoor (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.A.8 Packet Pg. 366 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 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 feet; two-bedroom, 650 square feet; 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. 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). 12.A.8 Packet Pg. 367 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 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. 12.A.8 Packet Pg. 368 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 369 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 370 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 371 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 372 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 373 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 374 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 375 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 376 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 377 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 378 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 379 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 12.A.8 Packet Pg. 380 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 1 Growth Management Department Planning and Zoning Division May 7, 2021 Noel Davies, Esq. 2375 Tamiami Trail N., Ste 306 Naples, FL 34103 Via email: Noel.Davies@DaviesDuke.com Re: SDP Application PL202000001903 - Isle of Capri Food Truck Park Dear Noel: Thank you for your letter dated April 8, 2021. We have reviewed the pertinent materials provided, including the Hearing Examiner Decision 2016-37, the Daruma Site Improvement Plan, a Zoning Verification Letter dated December 6, 2019, along with SIC Code 5812 (Eating Places), the more contemporary NAICS, and the standards for licensing of food trucks in Florida. SIC 5812 includes hamburger, hot dog, box lunch, and ice cream stands, fast food restaurants and stands, and carry-out only restaurants. As referenced in the Zoning Verification Letter dated December 6, 2019, the SIC classification system used in the Collier County Land Development Code is older and does not always address the changing trends of business. In fact, the SIC has not been updated since 1987 and can, at times, be less than sufficient in identifying and categorizing new businesses in our community, such as the increasingly popular food truck business. For this reason, when necessary, it is useful in our determinations to review and consider the more contemporary NAICS to identify the categorization of similar uses. Therefore, when we “cross-walk” the SIC code 5812 (Eating Places), we go to NAICS 72 (Accommodation and Food Services). This category includes eating establishments identified in SIC 5812, and recognizes “food stands” today can be mobile and provides for establishments primarily engaged in preparing and serving meals and snacks for immediate consumption from motorized vehicles or nonmotorized carts, including Ice cream truck vendors, Mobile food concession stands, Mobile canteens, Mobile refreshment stands, Mobile food carts, and Mobile snack stands. Furthermore, we recognize the Florida Division of Hotels and Restaurants license and regulate eating establishments, including mobile food dispensing vehicles (MFDVs). Based on Collier County’s history of findings that food trucks are similar in nature to other eating places in SIC 5812, the additional information provided and reviewed supplements the ZVL issued for PL20200001955 and affirms the request for a Comparable Use Determination for food trucks is resolved and is not required as part of the Site Development Plan PL20200001903 for this use. In C-3 zoning an eating place/food truck park is limited to 6,000 12.A.8 Packet Pg. 381 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 2 square feet or less in gross floor area. The related ZVL still stands on drinking establishments; they are SIC Code 5813 requiring a conditional use in C-3 zoning districts. Respectfully, Anita Jenkins, AICP Division Director CC via email: Heidi Ashton-Cicko Jeffery A. Klatkow Ray Bellows Cormac Giblin Matt McLean Jamie French 12.A.8 Packet Pg. 382 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 1 Robert Lincoln From:AshtonHeidi <Heidi.Ashton@colliercountyfl.gov> Sent:Monday, May 10, 2021 9:49 AM To:JenkinsAnita Subject:FW: SDP PL20200001903 Isle of Capri Food Truck Park Attachments:Second Letter to Anita Jenkins (Rogers) 04-05-2021.pdf; HEX Final Decision 2016-37 Food Truck Park.pdf; SIP Food Truck.pdf; PL20200001955 ZVL Isle of Capri Food Truck Park.pdf; PL20190002574 zvl 1995 elsa st.pdf; SDP PL20200001903 Review Comment Letter1.pdf; Letter to Noel Davies Isle of Capri Food Truck Park.docx Anita, I have no issues with your letter. It is reasonable in light of the other zoning verification letters approving food trucks in areas allowing SIC Code 5812. You might want to state that your letter supplements the ZVL issued for PL20200001955, and that that ZVL still stands-since the bar drinking establishment is another SIC Code requiring a conditional use. Please call me if you’d like to discuss further. Thanks. Heidi Ashton-Cicko Managing Assistant County Attorney Office of the Collier County Attorney 2800 North Horseshoe Drive, Suite 301 Naples, FL 34104 (239) 252-8773 From: JenkinsAnita <Anita.Jenkins@colliercountyfl.gov> Sent: Friday, May 7, 2021 5:55 PM To: AshtonHeidi <Heidi.Ashton@colliercountyfl.gov> Subject: FW: SDP PL20200001903 Isle of Capri Food Truck Park Hi Heidi, I’ve drafted an attached response letter (the Word document) to Noel’s “Second Letter….” I would really appreciate your review and input before I finalize and send out. Thank you so much! Respectfully, Anita Jenkins Division Director Planning and Zoning Division 2800 N. Horseshoe Dr., Naples, FL 34104 Phone: (239) 252-8288 Cell: (239) 478-3701 12.A.8 Packet Pg. 383 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 2 From: Catherine Louise <catherine.louise@daviesduke.com> Sent: Friday, April 09, 2021 11:40 AM To: JenkinsAnita <Anita.Jenkins@colliercountyfl.gov> Cc: KlatzkowJeff <Jeff.Klatzkow@colliercountyfl.gov>; AshtonHeidi <Heidi.Ashton@colliercountyfl.gov>; BellowsRay <Ray.Bellows@colliercountyfl.gov>; GiblinCormac <Cormac.Giblin@colliercountyfl.gov>; Noel Davies <noel.davies@daviesduke.com> Subject: SDP PL20200001903 Isle of Capri Food Truck Park EXTERNAL EMAIL: This email is from an external source. Confirm this is a trusted sender and use extreme caution when opening attachments or clicking links. Anita, Please see the attached letter and documents from Noel Davies. Thank you, Catherine Catherine Louise, Land Use Paralegal Catherine.Louise@DaviesDuke.com 239.246.0555 Davies Duke, PLLC www.DaviesDuke.com 2375 Tamiami Trail N., Ste 306 Naples, FL 34103 Confidentiality: This email transmission and any and all attachments are confidential and potentially privileged and shall be retained only by the intended addressee. If you have received this email in error, please delete this email and all attachments and notify the sender immediately. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. 12.A.8 Packet Pg. 384 Attachment: Motion to Limit Issues of SDP Appeal - 10-4-21 (20268 : Isles of Capri Food Truck Park motions) 1 BEFORE THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA FCC BEACH AND YACHT, LLC, Appellant, APPEAL No. PL20210001944 ADMINISTRATIVE APPEAL OF SITE DEVELOPMENT PLAN PL20200001903 v. COLLIER COUNTY and GRIDER REVOCABLE TRUST, Appellees. RESPONSE TO GRIDER REVOCABLE TRUST’S MOTION TO LIMIT RETROACTIVE APPLICATION OF ORDINANCE 2020-44 AND ANY DECISION ON FCC’S APPEAL OF OI PL 20210000943 AND CROSS-MOTION TO DECLARE THE SDP VOID AB INITIO The Grider Revocable Trust (“Trust”) wants to operate a food truck park and bar on property located within a zoning district that does not provide for that use (i.e., the C-3 Zoning District). Instead of seeking a comparable use determination, the Trust obtained an unsigned Zoning Verification Letter (“ZVL”), which forms the basis for the Site Development Plan (“SDP”) underlying this appeal. In its appeal, FCC Beach and Yacht, LLC (“FCC”) identified numerous grounds for reversing the SDP approval. In an attempt to defend the SDP approval, the Trust moved for a determination that the ZVL is binding, that Ordinance 2020-44 and Resolution 2020- 203 cannot be applied retroactively to invalidate the ZVL, and that the Official Interpretation cannot apply to the SDP approval as a matter of procedure. The Trust’s requested relief must be denied because: (1) the ZVL is not binding because it was not approved in accordance with the mandatory procedure in place at the time of its issuance; (2) regardless of whether the new procedure is applied retroactively, or the procedure effective at that time is utilized, the ZVL is 12.A.9 Packet Pg. 385 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 2 void ab initio for failure to comply; and (3) the same rationale for the Official Interpretation supports reversing the SDP approval regardless of any procedural formalities. I. FCC’s Appeal is Not Dependent Upon Retroactive Application of Ordinance 2020-44; the LDC Provisions in Effect on the Date of the Unsigned ZVL Demonstrate the SDP is Void Ab Initio. LDC section 10.02.06.K governs the comparable use process in effect at the time the SDP application was submitted to, and approved by, the County. The Trust claims that LDC section 10.02.06.K should not be applied retroactively to the ZVL because the language of Ordinance 2020-44 and Resolution 2020-203 does not expressly state such an intent. See Motion, ¶ 7. Respectfully, the County, as the author of that provision, has the authority to determine whether it was intended to apply retroactively. See Donovan v. Okaloosa County, 82 So. 3d 801, 807 (Fla. 2012) (holding that a county’s interpretation of its own ordinance is entitled to deference). Regardless, the comparable use procedure in place at the time of the unsigned ZVL (i.e., LDC section 10.08.00)1 demonstrates that a food truck park and bar is not permitted within the C-3 Zoning District, rendering the SDP void ab initio. As a general rule: 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 Collier County, Florida, the provision imposing the greater restriction or regulation shall be deemed to be controlling. 1 If the BZA determines that LDC section 10.02.06.k does not apply, then the conditional use process of LDC section 10.08.00 would have been required to authorize the food truck park since that use is not expressly permitted. Alternatively, the official interpretation process could be utilized to clarify whether “restaurant” may now be officially interpreted county-wide to include a food truck park. 12.A.9 Packet Pg. 386 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 3 See LDC 1.03.01.D. The Trust’s argument, in essence, is that the ZVL supersedes the comparable use procedure prescribed by the LDC and allows a food truck park on its property. For the reasons set forth below, the Trust incorrectly applies the LDC requirements. The Trust’s property at issue is zoned C-3. The C-3 Zoning District does not specifically identify a food truck park and bar as a permitted use, conditional use, or accessory use. See LDC Section 2.03.03.C. Tellingly, neither the Trust nor the County attempt to argue that a food truck park and bar is an expressly permitted use in the C-3 Zoning District. Because that use is not “specifically identified,” a food truck park is prohibited within the C-3 Zoning District. See LDC Section 2.02.03 (“Prohibited Uses Any use or structure not specifically identified in a zoning district as a permitted use, conditional use, or accessory use shall be prohibited in such zoning district.”).2 The only way for the Trust to operate a food truck park and bar on property zoned C-3 is through the comparable use determination procedure provided for pursuant to LDC section 2.03.03.C.1.a.96. At the time the Trust obtained the ZVL, LDC section 2.03.03.C.1.a.96 read as follows: 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. *** 96. 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. 2 All emphasis within quotations is added. 12.A.9 Packet Pg. 387 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 4 See Ordinance No. 2020-44, p. 8 (identifying the language to be added to, and stricken from, LDC section 2.03.03, effective November 17, 2020, one month after the date of the ZVL). Thus, on the date of the unsigned ZVL, the only way to obtain a comparable use determination was through compliance with LDC Section 10.08.00, which sets forth the “Conditional Use Procedures” and which required Board of Zoning Appeals approval. See LDC section 10.08.00.A (the then- operative process for determining whether a use not expressly identified is comparable, required a noticed, public hearing through the conditional use process: “All petitions for conditional uses shall be considered first by the Planning Commission in the manner herein set out. Decisions regarding conditional uses shall be quasijudicial in nature.”). Similarly, at the time of the ZVL, LDC section 2.03.03.C.1.c.27. provided that conditional uses within the C-3 Zoning District included: “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.” See Ordinance 2020-44, p. 9 (identifying the language to be added to, and stricken from, LDC section 2.03.03). There is no dispute that the Trust failed to comply with the Conditional Use Procedures set forth in LDC section 10.08.00 prior to approval of the SDP. Regardless, the process in place at that time limited the comparable use determination to C-1 permitted uses, which did not include restaurants 3 nor any other category within which a food truck park and bar could fall.4 Because the Trust failed to obtain a valid conditional use 3 Rather, restaurants were only allowed through the conditional use process, which – as discussed above – was not followed. 4 After the date of the unsigned ZVL, Ordinance 2020-44 revised this provision such that the comparable uses are no longer limited to C-1 uses. However, the Board of Zoning Appeals is still the board that approves the comparable use determination through the Conditional Use Procedures. 12.A.9 Packet Pg. 388 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 5 determination, the food truck park remains a prohibited use within the C-3 Zoning District and the SDP is therefore void ab initio. II. The ZVL is Likewise Void Ab Initio for Failure to Comply with the Procedural Requirements. The Trust essentially claims that it was able to circumvent the public hearing comparable use determination by obtaining an unexecuted ZVL pursuant to LDC section 10.02.06.J. However, as of the date of the unsigned ZVL, a zoning verification letter could only be used for comparable use determinations pertaining to a planned unit development, and no such development is involved here.5 See Ordinance 2020-44 at p. 24-25 (identifying the language of LDC section 10.02.06.J1.b. at the time of the ZVL). More importantly, approval of the ZVL required a resolution issued by the Board of County Commissioners at an advertised public hearing:6 Comparable Use Determination. The County Manager or designee may issue a zoning verification letter to determine whether a use within a PUD is consistent and compatible with the surrounding uses within the PUD. To be effective, the zoning verification letter shall be approved by the BCC by resolution at an advertised public hearing. Because no such hearing was held, nor resolution issued, the ZVL is void ab initio. The invalidity of the ZVL is further evidenced by the fact that it was not signed by any party. The Trust claims that FCC cannot now challenge the invalidity of the ZVL because FCC did not appeal it. See Motion, ¶ 3. However, FCC was denied the ability to appeal the ZVL by the Appellees’ failure to hold the requisite advertised public hearing. Not only was FCC denied 5 Because no planned unit development was involved, the Zoning Director lacked the authority to make a comparable use determination through the ZVL process under LDC section 10.02.06.J.1.a.i, which is the subsection relied upon by the Trust. Instead, the proper procedure for the comparable use determination within a conventional zoning district such as C-3 was provided for in LDC section 10.08.00, discussed above. 6 Ordinance 2020-44 similarly amended the LDC to require an advertised public hearing for each comparable use determination pursuant to LDC section 10.02.06.K, indicating a clear intent for public participation in such determinations. 12.A.9 Packet Pg. 389 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 6 notice of the ZVL, it was also denied the right to be heard. More importantly, because Appellees failed to comply with the requisite procedure, the ZVL is neither binding nor unassailable.7 Because the ZVL is void ab initio, the SDP approval founded upon that ZVL is likewise void. The Trust appears to claim that it was excused from the advertised public hearing requirement by Hearing Examiner Decision 2016-37 (“HEX 2016-36”). See Motion, ¶ 4 (claiming that food trucks are a permitted use within the C-3 Zoning District based upon prior decisions of the County and citing Exhibit 3, a letter from Anita Jenkins stating that the County reviewed “pertinent” materials, including HEX 2016-37). HEX 2016-37 pertained to a specific piece of property with different neighboring properties and uses. See HEX No. 2016-37, attached as Exhibit A. Even more distinguishable, the Hearing Examiner cited LDC section 2.03.03.D.1.c.26 as the basis for his jurisdiction. Id. LDC section 2.03.03.D. governs the General Commercial District C-4 – whereas the ZVL pertains to the C-3 Zoning District. More importantly, subsection 2.03.03.D.1.c. pertains to “conditional uses” – whereas the ZVL involves an alleged “permitted use.” This highly individualized fact-intensive decision by the hearing examiner cannot be used as a substitute for an advertised public hearing, nor as precedent for all comparable use determinations ad infinitum. The Trust’s reliance upon LDC section 10.02.06.J.1 ignores LDC section 2.03.00. If there is any dispute as to whether a public hearing process was the appropriate process to authorize a use not expressly permitted in the underlying zoning district, LDC section 2.03.00 controls. At the time of the ZVL, LDC section 2.03.00 provided that determinations regarding whether a use was permitted within a district had to be made pursuant to LDC 1.06.00: 7 FCC’s appeal is therefore distinguishable from other proceedings in which the proper procedure was followed. Stated differently, FCC had no obligation to appeal a determination that was never approved. 12.A.9 Packet Pg. 390 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 7 2. 03. 00 — Zoning Districts; Permitted Uses, Accessory Uses, and Conditional Uses In order to carry out and implement the Collier County GMP and the purposes of this LDC, the following zoning districts, district purposes, and applicable symbols are hereby established: A. Rules for Interpretation of Uses. In any zoning district, where the list of permitted and conditional uses contains the phrase " any other use which is comparable in nature with the foregoing uses and is consistent with the permitted uses and purpose and intent statement of the district" or any similar phrase which provides for a use which is not clearly defined or described in the list of permitted and conditional uses, which requires the discretion of the County Manager or designee as to whether or not it is permitted in the district, then the determination of whether or not that use is permitted in the district shall be made through the process outlined in interpretations, of this LDC. 1.06.00. See Ordinance 2020-44, at p. 5. Section 1.06.01 of the LDC has read as follows since 2013: D. Request for Official Interpretation. The County Manager or designee may render an official interpretation of any part of the LDC. The building official may render an official interpretation of any part of the Florida Building Code. 1. Generally. An official interpretation may be requested by any affected person, resident, developer, land owner, government agency or department, or any person having a contractual interest in land in Collier County. 2. Procedure. The Administrative Code shall establish the procedure and submittal requirements for an official interpretation. 3. Request Criteria. Each request must identify the specific LDC or building code citation to be interpreted. Each request for interpretation must be accompanied by the appropriate fee as set forth in the fee resolution adopted by the Board of County Commissioners. Under no circumstances may the request for interpretation contain more than 3 issues or questions. It must not contain a single question with more than 3 sub-issues or questions. If it is determined by the appropriate official that the request for interpretation contains more than 3 issues, the applicant will be required to submit a separate request accompanied by the applicable fees. FCC’s Appeal of Official Interpretation was to the Board of Zoning Appeals. See LDC section 1.06.01(D)(6). The procedure set forth in LDC section 1.06.01(D)(6) should control instead of LDC section 10.02.06.J.1 The comparable use language in the C-3 Zoning District contains no 12.A.9 Packet Pg. 391 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 8 administrative discretion. All comparable use determinations were made by the BCC through the conditional use process prior to November 17, 2020 (the effective date of Ordinance 2020-44), and then, after implementation of Ordinance 2020-44, the conditional use process was overseen and determined by a hearing examiner. Put another way, regardless of whether Ordinance 2020- 44 is applied retroactively, the conditional use process required a public hearing, which did not occur here. III. Conclusion. For all of the above reasons, the Trust’s Motion to Limit Retroactive Application of Ordinance 2020-44 and Any Decision on FCC’s Appeal of OI PL20210000943 should be denied and FCC’s cross-motion to declare the SDP void ab initio should be granted. Respectfully submitted this 6th day of October, 2021. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Glenn Burhans, Jr. Florida Bar No. 605867 Bridget Smitha Florida Bar No. 0709581 Erin Tilton Florida Bar No. 104729 106 East College Avenue, Suite 700 Tallahassee, FL 32301 Telephone: (850) 329-4850 Primary: gburhans@stearnsweaver.com bsmitha@stearnsweaver.com etilton@stearnsweaver.com Secondary: cabbuhl@stearnsweaver.com abrantley@stearnsweaver.com COLEMAN YOVANOVICH & KOESTER, P.A. s/ Richard D. Yovanovich Richard D. Yovanovich Florida Bar No. 782599 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103 Telephone: (239) 435-3535 Primary: ryovanovich@cyklawfirm.com Secondary: dquintanilla@cyklawfirm.com Counsel for FCC Beach & Yacht, LLC 12.A.9 Packet Pg. 392 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 9 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via e-mail this 6th day of October, 2021 to: Jeffrey Katzkow Heidi Ashton-Cisko Collier County Attorney’s Office 3299 E. Tamiami Trail, Suite 800 Naples, FL 34112 Jeff.Katzkow@colliercountyfl.gov Heidi.Ashton@colliercountyfl.gov Robert K. Lincoln Law Office of Robert K. Lincoln, P.A. 2055 Wood Street, Suite 206 Sarasota, FL 34237 Robert.Lincoln@flalandlaw.com S: Amra.Dillar-Rickwa@flalandlaw.com Noel J. Davies Davies Duke, PLLC 2375 Tamiami Trail N., Suite 306 Naples, FL 34103 Noel.Davies@daviesduke.com s/ Richard D. Yovanovich 12.A.9 Packet Pg. 393 Attachment: Response to Motion to Limit Retroactive Application and Cross-Motion (20268 : Isles of Capri Food Truck Park motions) 12.A.10 Packet Pg. 394 Attachment: Chapter 2001-344 Laws of Florida (20268 : Isles of Capri Food Truck Park motions) 12.A.10 Packet Pg. 395 Attachment: Chapter 2001-344 Laws of Florida (20268 : Isles of Capri Food Truck Park motions) 12.A.10 Packet Pg. 396 Attachment: Chapter 2001-344 Laws of Florida (20268 : Isles of Capri Food Truck Park motions) 12.A.10 Packet Pg. 397 Attachment: Chapter 2001-344 Laws of Florida (20268 : Isles of Capri Food Truck Park motions) 12.A.10 Packet Pg. 398 Attachment: Chapter 2001-344 Laws of Florida (20268 : Isles of Capri Food Truck Park motions) PART I - CODE Chapter 2 - ADMINISTRATION ARTICLE III. - OFFICERS AND EMPLOYEES DIVISION 3. HEARING EXAMINER Collier County, Florida, Code of Ordinances Created: 2021-08-13 08:13:53 [EST] (Supp. No. 99) Page 1 of 4 DIVISION 3. HEARING EXAMINER Sec. 2-83. Title and citation. This Ordinance shall be known and may be cited as the "Collier County Hearing Examiner Ordinance." (Ord. No. 2013-25, § 1) Sec. 2-84. Establishment of Office of Hearing Examiner. The Office of Hearing Examiner is hereby established. (Ord. No. 2013-25, § 2) Sec. 2-85. Method and conditions for selection, appointment and removal of the Hearing Examiner. (a) Recruitment for the position of Hearing Examiner shall be in such manner as may be determined by the Board of County Commissioners. (b) The Hearing Examiner shall be appointed by an affirmative vote of not less than three members of the Board of County Commissioners and serve at the will and pleasure of the Board of County Commissioners. The Board may appoint multiple Hearing Examiners. Appointment shall be made by written contract negotiated with the Board of County Commissioners, which contract shall set out the terms and conditions of employment, compensation and removal, and may specify any additional powers and duties delegated or assigned to the Hearing Examiner. Simultaneous service on the Collier County Planning Commission shall not preclude appropriate compensation. (c) The Hearing Examiner need not be a resident of the County at the time of appointment, but during the Hearing Examiner's tenure in office shall reside within the County. (d) The position of the Hearing Examiner shall be deemed vacant if the incumbent is removed, resigns, moves his residence from the County or is, by death, illness or other casualty, unable to continue in office. In the case of vacancy or disability, the matter shall be heard by the Collier County Planning Commission, the Board of County Commissioners or the Board of Zoning Appeals, as the case may be, following the established procedures set forth in the Collier County Land Development Code (hereinafter referred to as the "LDC"), until a successor has been appointed by the Board of County Commissioners or the Hearing Examiner resumes the duties of the position. (Ord. No. 2013-25, § 3) Sec. 2-86. Conduct of meetings, reports and records. (a) Rules of Procedure. The Board of County Commissioners shall adopt the Rules of Procedure for the conduct of all hearings before the Hearing Examiner. Such procedures shall be made part of the Collier County Administrative Code, with all amendments, additions, revisions, or modifications made by resolution of the 12.A.11 Packet Pg. 399 Attachment: Hearing Examiner Ordinance - codified (20268 : Isles of Capri Food Truck Park motions) Created: 2021-08-13 08:13:53 [EST] (Supp. No. 99) Page 2 of 4 Board of County Commissioners. Copies of the Rules of Procedures shall be maintained on file in the office of the Zoning Director, and published on-line for the benefit of the public. (b) Reports of Decisions. After a public hearing is held, the Hearing Examiner will make a written report of his decision in accordance with the Rules of Procedure, and provide a copy of the report of decision to all parties of record, County staff, and the Board of County Commissioners. (c) Records. The Hearing Examiner will be provided with a court reporter for all hearings in the same manner as provided for the Collier County Planning Commission. To assist the Hearing Examiner in the conduct of all hearings, the County Manager shall assign a staff person as Secretary to the Hearing Examiner. The Secretary shall keep indexed records of all meetings, agendas, findings, determinations and reports of decision. Such records shall be public records. (d) Attendance at Hearings. The Hearing Examiner may request staff members with personal knowledge of relevant facts to attend hearings and produce relevant documents. (Ord. No. 2013-25, § 4) Sec. 2-87. Powers and duties of the Hearing Examiner. The Hearing Examiner shall have the following powers and duties: 1. Appeals of Administrative Decision or Interpretation. All type III appeals of administrative decisions or interpretations, as set forth in LDC Section 10.04.04, shall be heard by the Hearing Examiner. All appeals and staff response to such appeals must substantially conform to the Rules of Procedure. In reaching his decision, the Hearing Examiner 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. 2. Variances. The Hearing Examiner will hear and decide all requests for variances from the terms of the regulations or restrictions of the zoning code and such other codes or ordinances as may be assigned to him by the Board of County Commissioners. In reaching his decision, the Hearing Examiner must consider: a. The criteria for the type of variance being requested, in particular those set forth in LDC Section 9.04.03; b. Staff recommendations; c. Testimony from the applicant; and d. Testimony from the public. Before granting any variance, the Hearing Examiner must make a finding with respect to each of the criteria set forth in LDC Section 9.04.03, and with respect to sign variances, LDC Section 5.06.08. The Hearing Examiner has the same authority as the Board of Zoning Appeals to grant, deny, or modify any request for a variance from the regulations or restrictions of this Code, or to attach conditions and requirements necessary for the protection of the health, safety, comfort, convenience and welfare of the general public. The conditions or requirements must be reasonably related to the variance requested and conform to the requirements of the LDC. 3. Conditional Uses. The Hearing Examiner will hear and decide all requests for minor conditional uses. For purposes of this section, a minor conditional use is one which does not require Environmental Advisory Council review and which is not a case of great public interest or concern as determined in the 12.A.11 Packet Pg. 400 Attachment: Hearing Examiner Ordinance - codified (20268 : Isles of Capri Food Truck Park motions) Created: 2021-08-13 08:13:53 [EST] (Supp. No. 99) Page 3 of 4 discretion of the Hearing Examiner. However, the Commissioner of the District in which the proposed minor conditional use is located may direct that the minor conditional use be heard by the Planning Commission in an advisory capacity and then Board of Zoning Appeals for final action. In reaching his decision, the Hearing Examiner must consider: a. The factors and criteria set forth in LDC Subsection 10.08.00.D; b. The relevant matters set forth in an applicant's written petition; c. The testimony of any applicant or agent; d. The recommendation of staff; and e. The testimony of the public. As part of his decision, the Hearing Examiner must make the findings required by LDC Subsection 10.08.00.D, and may place appropriate conditions and safeguards as set forth in LDC Subsection 10.08.00.E. 4. Boat Lift Canopies and Dock Facility Extensions. The Hearing Examiner shall hear all petitions for a boat lift canopy and dock facility extensions as provided for in LDC Subsections 5.03.06.G and H. 5. The Board of County Commissioners, by majority vote, may remand any advertised public hearing involving a development order to the Hearing Examiner for the sole purpose of opining on a legal or technical land use issue raised during the hearing. After reviewing the matter utilizing any procedure the Hearing Examiner deems appropriate, which may or may not include an advertised public hearing, the Hearing Examiner will issue a non-binding recommendation to the Board with respect to the issue remanded, which recommendation will become part of the record when the matter is again heard by the Board. 6. To the extent authorized by law, by Resolution of the Board of County Commissioners, the Hearing Examiner may be assigned any and all other powers and duties that have previously been granted to the Collier County Planning Commission or the Board of Zoning Appeals, expressly excepting those powers reserved to the Collier County Planning Commission as the local planning agency (LPA), and land development regulation commission as required by F.S. §§ 163.3174 and 163.3194. All powers and duties expressly granted to the Hearing Examiner, either by this ordinance or through future resolutions, preempt the Collier County Planning Commission, or the Board of Zoning Appeals, as the case may be, with respect to the established procedures set forth in the Collier County Land Development Code. (Ord. No. 2013-25, § 5; Ord. No. 2013-59, § 1; Ord. No. 2020-08 , § 1) Sec. 2-88. Decisions and appeals from decisions of the Hearing Examiner. All decisions of the Hearing Examiner arising from Section 2-87 will be delivered or mailed by the Hearing Examiner to all parties of record, the County Attorney, and the County Manager. Any party, including the County, may appeal the decision to the Board of Zoning Appeals or the Board of County Commissioners, as the case may be, within the time frame and in the manner provided by the Rules of Procedure. Failing a timely appeal, the decision of the Hearing Examiner will be considered final in all respects. Appeals shall be heard de novo by the reviewing Board in the manner proscribed in the LDC. In reaching its decision, the reviewing Board may adopt or deny, in whole or in part, the decision of the Hearing Examiner. (Ord. No. 2013-25, § 6) 12.A.11 Packet Pg. 401 Attachment: Hearing Examiner Ordinance - codified (20268 : Isles of Capri Food Truck Park motions) Created: 2021-08-13 08:13:53 [EST] (Supp. No. 99) Page 4 of 4 Sec. 2-89. Funding for the Office of the Hearing Examiner. The Board of County Commissioners shall appropriate funds as necessary from the general fund or other legally available funds of the County to employ the Hearing Examiner and provide necessary and reasonable expenses for the operation, management, space, facilities, and expenses associated with the Office of Hearing Examiner. Such appropriations shall be subject to periodic review and adjustment in accordance with the budgetary process of the County. (Ord. No. 2013-25, § 7) Sec. 2-90. Staff. The Community Development Services Division shall be the professional staff of the Hearing Examiner. (Ord. No. 2013-25, § 8) Sec. 2-91. Conduct of Hearing Examiner. A Hearing Examiner shall: a. Avoid impropriety and the appearance of impropriety in all of the Hearing Examiner's activities. b. Perform the duties of the Hearing Examiner impartially and diligently. c. Regulate outside activities to minimize the risk of conflict with the duties of the Hearing Examiner. d. Conduct themselves in a manner that does not give the appearance of influence or impropriety. e. Refrain from inappropriate political activity. f. Not simultaneously serve on any Collier County advisory committee that reviews and makes recommendations on matters related to land use, zoning, or permitting of construction. ( Ord. No. 2020-08 , § 2) 12.A.11 Packet Pg. 402 Attachment: Hearing Examiner Ordinance - codified (20268 : Isles of Capri Food Truck Park motions) 12.A.12Packet Pg. 403Attachment: 2021.09.08 Collier County Clerk ltr re legal notice-PL20210001944 (20268 : Isles of Capri Food Truck Park motions) 12.A.12Packet Pg. 404Attachment: 2021.09.08 Collier County Clerk ltr re legal notice-PL20210001944 (20268 : Isles of Capri Food Truck Park motions) 12.A.13Packet Pg. 405Attachment: 2021.09.08 Collier County Clerk ltr re legal notice-PL20210002121 (20268 : Isles of Capri Food Truck Park motions) 12.A.13Packet Pg. 406Attachment: 2021.09.08 Collier County Clerk ltr re legal notice-PL20210002121 (20268 : Isles of Capri Food Truck Park motions)