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HEX Final Decision 2022-22 HEX NO. 2022-22 HEARING EXAMINER DECISION DATE OF HEARING. April 14, 2022 PETITION. Petition No. PDI-PL20210002729 - Request for an insubstantial change to modify Section 12.4, Active Community Recreation Area, Lely Barefoot Beach Planned Unit Development (PUD), Ord. No. 85-83, as amended, to change the maximum building height from two habitable floors to 39.25-feet-zoned and 57.08-feet-actual. The subject PUD Tract is ± 6.25 acres located at 105 Shell Dr in Section 7,Township 48 South,Range 25 East,Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The purpose of the Petition is to establish a numerical building height. The maximum building height would change to the following: Zoned Height: 39'3" Actual Height: 57'1". 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. 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. The NIM was advertised for February 1, 2022, at Club at Barefoot Beach, 105 Shell Drive Bonita Springs, Florida.No members of the public were present or participating remotely and therefore no readings or transcripts have been available. INSTR 6252382 OR 6126 PG 3757 Page 1 of 5 RECORDED 5/13/2022 4:25 PM PAGES 7 CLERK OF THE CIRCUIT COURT AND COMPTROLLER COLLIER COUNTY FLORIDA REC$61.00 6. There is a concurrent application: PL20210002178, Site Development Plan Amendment for the Club at Barefoot Beach. 7. 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. 8. The County's Land Development Code Section 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 acting in the capacity of the Planning Commission shall make findings as to the original application with the criteria in Land Development Code Sections 10.02.13.E.1 and 10.02.13.E.2.1 LDC 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 reflets that there is no proposed increase in the number of dwelling units or intensity of land use, or height of buildings within the development. The height of the clubhouse will remain the same, the height changes from a number of stories to a numerical zoned and actual height. 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. 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 the requests do not impact the size of non-residential areas or proposed to relocate such areas within the PUD boundary. 'The Hearing Examiner's findings are italicized. Page 2 of 5 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 here are no substantial impacts resulting from this amendment 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 proposed amendment would not result in land-use activities that generate higher levels of vehicular traffic based upon the Trip Generation Manual published by the Institute of Transportation Engineers. 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 proposed changes will not impact or increase stormwater retention or increase 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 would be consistent with the FLUE of the GMP. There will be no changes to the PUD Document that would be deemed inconsistent with 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. Page 3 of 5 The record evidence and testimony from the public hearing reflects that due to the limited nature of this request, a determination and public hearing under F.S. 380.06(19) will not be required. 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 the proposed change is not deemed to be substantial. LDC 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 most recent zoning action in petition PUDA-PL20190001138. 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-PL20210002729, filed by D. Wayne Arnold, AICP of Q. Grady Minor & Associates, P.A. representing The Club at Barefoot Beach, Inc. with respect to the property as described in the Lely Barefoot Beach Planned Unit Development(PUD), Ordinance No. 85-83, for the following: • To approve an insubstantial change to modify Section 12.4,Active Community Recreation Area, Lely Barefoot Beach Planned Unit Development (PUD), Ord. No. 85-83, as amended,to change the maximum building height from two habitable floors to 39.25-feet- zoned and 57.08-feet-actual. Said changes are fully described in the proposed PUD Revisions attached as Exhibit"A" and are subject to the conditions below. Page 4 of 5 ATTACHMENTS. Exhibit A—Proposed PUD Revisions LEGAL DESCRIPTION. See Ordinance No. 85-83 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. May 12, 2022 Date Andrew Dickman, Esq., AICP Hearing Examiner Collier County Growth Management Division Page 5 of 5 EXHIBIT "A" SECTION XII TRACT: ACTIVE COMMUNITY RECREATION AREA *** *** *** *** *** Text break *** *** *** *** *** 12.4 MAXIMUM BUILDING HEIGHT Two habitable floors.Zoned: 39'-3" (measured from BFE (13') plus 1') Actual:57'-1" *** *** *** *** *** Text break *** *** *** *** *** Words struck through are deleted; words underlined are added. PL20210002729 The Lely Barefoot Beach PUD(PDI) March 4, 2022 EXHIBIT "A"