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HEX Final Decision 2021-62 HEX NO. 2021-62 HEARING EXAMINER DECISION DATE OF HEARING. November 12,2021 PETITION. PETITION NO. PDI- PL20200001682 - Lely a Resort Community - Request for an insubstantial change to Ordinance 92-15, as amended, the Lely, A Resort Community Planned Unit Development, by adding two deviations from LDC Section 5.06.04.F.4 to allow a second wall sign on the south (front) facade not to exceed 16 square feet and to allow an additional wall sign on the east (side) façade not to exceed 200 square feet for Unit 132, at 12725 Tamiami Trail East, in the Freedom Square Development located at the northwest corner of Tamiami Trail East (US 41) and Celeste Drive. The subject PUD consists of 2892± acres, located between U.S. 41 and Rattlesnake Hammock Road west of Collier Boulevard (CR 951), in Sections 21, 22, 27, 28, 33 and 34, Township 50 South, Range 26 East, Collier County, Florida, and Section 3, Township 51 South, Range 26 East,Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The applicant is requesting an insubstantial change to the PUD to address the literal limitation of one permitted wall sign for an interior unit at a maximum of 200 square feet to instead allow a total of three wall signs for the subject unit:two signs on the primary façade and one on the Celeste Drive corner elevation. The proposed Burlington signs include one sign of 200 square feet on the primary façade and a second, non-illuminated sign of 16 square feet, for a total of 216 square feet of sign area on the primary facade, and one 200 square foot sign for the southeast/Celeste Drive elevation; the total sign area of all signs combined is 416 square feet. STAFF RECOMMENDATION. Approval with conditions. FINDINGS. 1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87 of the Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of the County Administrative Code. 2. The public hearing for this Petition was properly noticed and conducted in accordance with all County and state requirements. 3. The public hearing was conducted electronically and in-person in accordance with Emergency/Executive Order 2020-04. Page 1 of 7 INJ T R 6174269 OR 6056 PG 1229 RECORDED 12/14/2021 10:54AM PAGES 16 CLERK OF THE CIRCUIT COURT AND COMPTROLLER COLLIER COUNTY FLORIDA REC$137.50 4. The Petitioner and/or Petitioner's representative executed the Hybrid Virtual Quasi-Judicial Public Hearing Waiver related to conducting the public hearing electronically and in-person. 5. A duly advertised NIM was held at 5:00 P.M. on August 24, 2021, at the Staybridge Suites Naples Marco Island, located at 9401 Triangle Boulevard, Naples, Florida, 341343; an option to attend remotely was provided. There being no participants the public the meeting was adjourned at 5:15 P.M. 6. The County Staff presented the Petition followed by the Petitioner and/or Petitioner's representative, public comment and then rebuttal by the Petitioner and/or Petitioner's representative. There were no objections to the Petition at the public hearing. 7. The County's Land Development Code Sections 10.02.13.E.1 and 10.02.13.E.2 lists the criteria for an insubstantial change to an approved PUD Ordinance. The Hearing Examiner having the authority of the Planning Commission may approve a request for an insubstantial change to an approved PUD ordinance upon review and evaluation of the criteria in the Collier County Land Development Code.1 Section 10.02.13.E.1 Criteria: 1. Is there a proposed change in the boundary of the Planned Unit Development(PUD)? The record evidence and testimony from the public hearing reflects that there is no proposed change in the boundary of the PUD. 2. Is there a proposed increase in the total number of dwelling units or intensity of land use or height of buildings within the development? The record evidence and testimony from the public hearing reflects that there is no proposed increase in the number of dwelling units or intensity of land use, or height of buildings within the development. 3. Is there a proposed decrease in preservation, conservation, recreation, or open space areas within the development in excess of five (5%) percent of the total acreage previously designated as such, or five (5) acres in area? The record evidence and testimony from the public hearing reflects that there is no proposed decrease in preservation, conservation, recreation, or open space areas within the development as designated on the approved Master Plan. 1 The Hearing Examiner's findings are italicized. Page 2 of 7 4. Is there a proposed increase in the size of areas used for non-residential uses, to include institutional,commercial,and industrial land uses(excluding preservation, conservation or open space), or a proposed relocation of nonresidential land uses? The record evidence and testimony from the public hearing reflects that there would be no increase to the size of areas used for non-residential uses and no relocation of non- residential uses proposed. 5. Is there a substantial increase in the impacts of the development which may include, but are not limited to increases in traffic generation; changes in traffic circulation; or impacts on other public facilities? The record evidence and testimony from the public hearing reflects that there are no substantial impacts resulting from this amendment pertaining to traffic generation, traffic circulation, or impacts on other public facilities. 6. Will the change result in land use activities that generate a higher level of vehicular traffic based upon the Trip Generation Manual published by the Institute of Transportation Engineers? The record evidence and testimony from the public hearing reflects that the request does not change land use activities and does not generate a higher level of vehicular traffic. 7. Will the change result in a requirement for increased stormwater retention, or otherwise increase stormwater discharge? The record evidence and testimony from the public hearing reflects that the request does not result in a requirement for increased stormwater retention or increased stormwater discharge. 8. Will the proposed change bring about a relationship to an abutting land use that would be incompatible with an adjacent land use? The record evidence and testimony from the public hearing reflects that there will be no incompatible relationships with abutting land uses. 9. Are there any modifications to the PUD Master Plan or PUD document or amendment to a PUD ordinance which is inconsistent with the Future Land Use Element or other elements of the Growth Management Plan or which modification would increase the density of intensity of the permitted land uses? The record evidence and testimony from the public hearing reflects that the proposed changes to the PUD Document are consistent with the FLUE of the GMP. Both environmental and Transportation Planning staff reviewed this petition, and no changes to the PUD Document are proposed that would be deemed inconsistent with the CCME or Page 3 of 7 the Transportation Element of the GMP. This petition does not propose any increase in density or intensity of the permitted land uses. 10. The proposed change is to a PUD District designated as a Development of Regional Impact (DRI) and approved pursuant to Chapter 380.06, Florida Statues, where such change requires a determination and public hearing by Collier County pursuant to Sec.380.06(19), F.S. Any change that meets the criterion of Sec. 380.06 (19)(e)2., F.S., and any changes to a DRI/PUD Master Plan that clearly do not create a substantial deviation shall be reviewed and approved by Collier County under Section 10.02.13 of the LDC. The record evidence and testimony from the public hearing reflects that the Lely, A resort Community PUD, is a DRI, however, this change does not require an amendment to the DRI. 11. Are there any modifications to the PUD Master Plan or PUD document or amendment to a PUD ordinance which impact(s)any consideration deemed to be a substantial modification as described under Section(s) 10.02.13 E.? The record evidence and testimony from the public hearing reflects that based upon the analysis provide above, the proposed change is not deemed to be substantial. Section 10.02.13.E.2 Criteria: 1. Does this petition change the analysis of the findings and criteria used for the original application? The record evidence and testimony from the public hearing reflects that the proposed changes do not affect the original analysis and findings for the original application. The proposed deviation will not alter the findings of the original Lely, A Resort Community PUD petition Deviations: Proposed Deviation #14 Deviation from LDC Section 5.06.04 F.4.,which allows one wall,mansard,canopy or awning sign for each unit in a multiple-occupancy parcel that is not an end unit and does not have at least 25,000 sq. ft. of floor area and 200 ft. of front wall length, to instead allow an additional nonilluminated wall sign (logo) not to exceed 16 square feet to be placed on the front façade adjacent to the unit entrance, not higher than 9 feet above grade. This deviation applies solely to Unit 132 of the Freedom Square Development. Petitioner's Justification: This deviation is to allow an additional non-illuminated 16 square foot pedestrian-level logo sign that is part of an architectural entranceway designed to humanize the scale of the substantial overall Page 4 of 7 façade. The 16 square feet requested for the entrance logo sign is in addition to the 200 square feet allowed for the frontage that will be used entirely for the primary identification sign. The effect of two signs is that they are viewed separately and therefore avoid the perception of sign clutter. The applicant argues that the additional 16 square feet is justified by the need to maintain signage hierarchy within the shopping center as smaller stores are allowed signs of up to 150 square feet. The LDC allows a second sign for end units and three signs are allowable for stores with at least 25,000 square feet of floor area and 200 feet of front wall frontage. The subject Burlington store has 140%of the floor area to qualify but only 140 feet-6 inches of front wall frontage.Additionally, the Burlington store has a second façade that functions much like an end unit; however, County staff has opined the unit is not technically an end unit. The applicant notes that"end unit" is not a defined term within the LDC. The record evidence and testimony from the public hearing reflects that approval of this deviation, is in compliance with LDC Section 10.02.13.A.3, the petitioner has demonstrated that "the element may be waived without a detrimental effect on the health, safety and welfare of the community" and LDC Section 10.02.13.B.5.h, the petitioner has demonstrated that the deviation is `justified as meeting public purposes to a degree at least equivalent to literal application of such regulations. Proposed Deviation #15 Deviation from LDC Section 5.06.04 F.4, which allows for one wall, mansard, canopy or awning sign shall be permitted for each single-occupancy parcel, or for each unit in a multiple-occupancy parcel. Sign(s) shall be affixed to the associated tenant or lease holder's unit, with exceptions for architectural design impediments, as noted in LDC section 5.06.04 F.4.b. End units within shopping centers and multiple-occupancy parcels, or single occupancy parcels where there is double frontage on a public right-of-way, shall be allowed 2 signs, but such signs shall not be placed on one wall, to instead allow an additional wall sign on the East façade not to exceed 200 square feet. This deviation applies solely to Unit 132 of the Freedom Square Development. Petitioner's Justification: The deviation will allow for an additional sign of 200 square feet on a side façade belonging to Unit 132 of the Freedom Square Development. The LDC allows a second sign for end units and three signs are allowable for stores with at least 25,000 square feet of floor area and 200 feet of front wall frontage. The subject Burlington store has 140% of the floor area to qualify but only 140 feet-6 inches of front wall frontage. Additionally, the Burlington store has a second façade that functions much like an end unit; however, County staff has opined the unit is not technically an end unit. The applicant notes that"end unit" is not a defined term within the LDC. This end of the shopping center is being redeveloped and a restaurant with outdoor seating and a new retail store will bookend the 104 feet of the exterior wall belonging to Burlington. The requested sign on Burlington's Celeste Drive frontage would provide a visual bridge between the restaurant and the retail store thereby improving the aesthetic of the shopping center and distracting from the dumpster enclosure that is to be placed between the two. Page 5of7 The record evidence and testimony from the public hearing reflects that approval of this deviation, is in compliance with LDC Section 10.02.13.A.3, the petitioner has demonstrated that "the element may be waived without a detrimental effect on the health, safety and welfare of the community" and LDC Section 10.02.13.B.5.h, the petitioner has demonstrated that the deviation is `justified as meeting public purposes to a degree at least equivalent to literal application of such regulations. " ANALYSIS. Based on a review of the record including the Petition, application, exhibits, the County's staff report, and hearing comments and testimony from the Petitioner and/or the Petitioner's representative(s), County staff and any given by the public, the Hearing Examiner finds that there is enough competent, substantial evidence as applied to the criteria set forth in Sections 10.02.13.E.1 and 10.02.13.E.2 of the Land Development Code to approve Petition. DECISION. The Hearing Examiner hereby APPROVES Petition Number PDI-PL20200001682, filed by Jeff Katims, AICP of Sepsi, Inc. representing the applicant, Burlington Stores, Inc. and the property owner, New Plan Florida Holdings, LLC with respect to the property in the Lely, A Resort Community Planned Unit Development (PUD), Ordinance Number 92-15, as amended, and described as Unit 132 at 12725 Tamiami Trail East, is located within the Freedom Square, a 19.8± acre shopping center, located at the northwest quadrant of Tamiami Trail East(US 41)and Celeste Drive, which is further located within the larger Lely, A Resort Community, PUD comprising 2892± acres located between US 41 and Rattlesnake Hammock Road west of Collier Boulevard (CR 951), in Sections 21, 22, 27, 28, 33 and 34, Township 50 South, Range 26 East, Collier County, Florida, and Section 3, Township 51 South, Range 26 East, Collier County, Florida, for the following: • An insubstantial change to the Lely, A Resort Community Planned Unit Development (PUD), Ordinance 92-15, as amended, by adding two deviations from LDC Section 5.06.04.F.4 to allow a second wall sign on the south(front) façade not to exceed 16 square feet and to allow an additional wall sign on the east(side)façade not to exceed 200 square feet for the subject unit, located within the Freedom Square development. Said changes are fully described in the proposed Site Plan and Deviations attached as Exhibit"A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A—Site Plan and Deviations LEGAL DESCRIPTION. Ordinance Number 92-15, as amended, Unit 132 at 12725 Tamiami Trail East, is located within the Freedom Square, a 19.8+ acre shopping center, located at the northwest quadrant of Tamiami Page 6 of 7 Trail East (US 41) and Celeste Drive, which is further located within the larger Lely, A Resort Community, PUD comprising 2892+ acres located between US 41 and Rattlesnake Hammock Road west of Collier Boulevard (CR 951), in Sections 21, 22, 27, 28, 33 and 34, Township 50 South, Range 26 East, Collier County, Florida CONDITIONS. All other applicable state or federal permits must be obtained before commencement of the development. DISCLAIMER. Pursuant to Section 125.022(5)F.S., issuance of a development permit by a county does not in any way create any rights on the part of the applicant to obtain a permit from a state or federal agency and does not create any liability on the part of the county for issuance of the permit if the applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. APPEALS. This decision becomes effective on the date it is rendered. An appeal of this decision shall be done in accordance with applicable ordinances, codes and law. RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES. December 10, 2021 Date Andrew Dickman, Esq., AICP Hearing Examiner Page 7 of 7 EXHIBIT " A" SECTION XV DEVIATIONS FROM THE LDC In addition to deviations currently approved in the PUD,the following deviations are being added to the PUD: * * * * * * * * * * * * * Deviation 14:Deviation from LDC Section 5.06.04 F.4.,which allows one wall,mansard,canopy or awning sign for each unit in a multiple-occupancy parcel that is not an end unit and does not have at least 25,000 sq. ft. of floor area and 200 ft. of front wall length, to instead allow an additional nonilluminated wall sign(logo)not to exceed 16 square feet to be placed on the front façade adjacent to the unit entrance, not higher than 9 feet above grade. This deviation applies solely to Unit 132 of the Freedom Square Development. [PL202000016821 Deviation 15: Deviation from LDC Section 5.06.04 F.4, which allows for one wall, mansard, canopy or awning sign shall be permitted for each single-occupancy parcel, or for each unit in a multiple-occupancy parcel. Sign(s)shall be affixed to the associated tenant or lease holder's unit, with exceptions for architectural design impediments, as noted in LDC section 5.06.04 F.4.b. End units within shopping centers and multiple-occupancy parcels, or single occupancy parcels where there is double frontage on a public right-of-way, shall be allowed 2 signs,but such signs shall not be placed on one wall, to instead allow an additional wall sign on the East façade not to exceed 200 square feet. This deviation applies solely to Unit 132 of the Freedom Square Development. [PL20200001682] Words underlined are added; words shale-through are deleted. 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