Agenda 06/14/2022 Item #16K8 (BZA deny Appeal of March 24, 2022 HEX Decision)
Proposed Agenda Changes
Board of County Commissioners Meeting
June 14, 2022
Move Item 16K8 to 8A: Recommendation that the Board of County Commissioners,
sitting as the Board of Zoning Appeals, deny the appeal of the March 24, 2022,
decision of the Hearing Examiner. (District 1) (Commissioner LoCastro’s,
Commissioner McDaniel’s, Commissioner Taylor’s, Commissioner Saunders’, and
Commissioner Solis’ separate requests)
Continue Item 16A16 to the June 28, 2022, BCC Meeting: Recommendation to award Invitation to Bid ("ITB")
No. 22‐7958, "Aquatic Vegetation Maintenance," to Airboat Addicts, Inc., and authorize the Chairman to sign
the attached agreement. (Estimated annual spend of $350,000, Stormwater Operating Fund 103). (All Districts)
(Staff’s Request)
Add on Item 10C: Recommendation to direct staff to bring back an amendment to Section 10.03.05 of the
Land Development Code (LDC) to reduce the notification requirement for variances within the Estates
Zoning District from 1-mile to 1,000-feet and consider the future amendment an act of zoning in progress to
be implemented upon board direction. (Commissioner Saunders’ request)
Notes:
Time Certain Items:
Item 10B to be heard no sooner than 1:00 PM: Presentations from candidates for the position of County
Manager.
7/19/2022 3:38 PM
06/14/2022
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners, sitting as the Board of Zoning Appeals,
deny the appeal of the March 24, 2022, decision of the Hearing Examiner.
_____________________________________________________________________________________
OBJECTIVE: That the Board of County Commissioners, sitting as the Board of Zoning Appeals, deny
the appeal of the March 24, 2022, decision of the Hearing Examiner.
CONSIDERATIONS: On March 24, 2022, Collier County Hearing Examiner, Andrew Dickman, heard
a petition for a Comparative Use Determination for the Artesia Pointe Planned Unit Development to
allow for a new automated car wash. The proposed car wash was to be located at an undeveloped 1acre
site at the intersection of Collier Blvd. and Pasedo Drive near the Walmart Superstore.
County Staff recommended approval of the petition. Among the public was the representative of a nearby
car wash, Dolphin Auto Spa Car Wash. The Hearing Examiner approved the petition, which has been
appealed by Dolphin Auto Spa Car Wash. For the reasons set forth below, the County Attorney believes
that the appeal lacks merit and cannot be heard by the BZA.
Appellant lacks standing
Dolphin Auto Spa Car Wash’s asserted right to appeal is set forth in a 1967 Special Act which provides as
follows:
Sec. 250-58. - Appeal from decision of administrative official.
(a) 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, departm ent, 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. Such appeals shall be taken within 30
days by filing with the administrative offici al a written notice specifying the grounds
thereof. The administrative official shall forthwith transmit to the board all papers,
documents, and maps constituting the record of the administrative action from which an
appeal is taken.
(b) Due public notice of the hearing on the administrative appeal shall be given.
(c) Upon the hearing, any party may appear in person or by attorney. A decision shall be
reached by the appellate body within 30 days of the hearing; otherwise, the action appealed
from shall be deemed affirmed.
(Laws of Fla. ch. 67-1246, § 16; Laws of Fla. ch. 2001 -344, § 1)
Dolphin Auto Spa Car Wash, which is not a party to the application, claims that it is an “aggrieved”
person. The County Attorney’s Office has historically taken the position that an “aggrieved” person
under this section is anyone that the Courts would grant “standing” to in a land use matter. Not every non-
party has the right to bring an appeal, and only those that a court would confer “standing” to are entitled
to bring an appeal.
The Florida Supreme Court has long recognized that standing requires showing that one will suffer
special damages that differ in kind, rather than degree, from others in the community. Renard v. Dade
County, 261 So.2d 832, 837 (Fla. 1972). One must show that their affected interest is different from
others in the community at large. Here, the basis of Appellant’s special damages claim is increased
competition. The Florida Supreme Court has made it abundantly clear that increased competition does not
support standing. Skaggs-Albertson’s Props., Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 363. So.2d
1082, 1089 (Fla. 1978). It is also worth noting that, several public speakers affiliated with the Appellant
spoke at the Hearing Examiner Hearing on March 24, 2022, all of whom expressed concern about the
competition that the Applicant’s proposal poses. Regarding the Appellant, the Hearing Examiner noted in
his decision that the “clear message is that they are concerned about the economic impact on t heir
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business.” See Hearing Examiner Decision 2022-17, page 2, para. 6.
Additionally, Appellant’s property is 0.7 miles away from the Applicant’s property. Florida courts have
historically recognized the standing of adjacent landowners, but a landowner 0.7 miles away is far
removed. See Renard, 261 So.2d at 835; see also Conrad v. Jackson, 107 So.2d 369, 371 (Fla. 1958).
The legal arguments presented on appeal are different than the claims presented
at the Hearing Examiner hearing held on March 24, 2022
Chapter 9 of the Collier County Administrative Code provides in relevant part as follows:
1. Within 30 days after the Hearing Examiner’s written determination has been
rendered, either the County or the landowner may appeal the determination to the
Board of County Commissioners. Any additional fee for a landowner initiated
appeal must accompany the appeal. At the public hearing, the Board of County
Commissioners will review the record created by the Hearing Examiner’s
proceedings, but the Board may by majority vote accept evidence not presented to
the Hearing Examiner.
2. The Board of County Commissioners may:
• Affirm the Hearing Examiner’s determination, with or without modifications or
conditions; or
• Reject the Hearing Examiner’s determination, except that the Board may not
modify the determination or impose conditions, or reject the Hearing Examiner’s
determination unless the Board expressly finds that one or more of the Hearing
Examiner’s findings of fact or conclusions of law is not supported by competent
substantial evidence in the official record, or that the Hearing Examiner’s
determination otherwise specifically failed to properly apply one or more of the
criterion in the LDC or GMP (emphasis added).
The arguments made in the appeal simply were not presented before the Hearing Examiner, and
accordingly are not within the official record. The main argument presented by counsel for the Appellant
at the hearing (who is different counsel from the one who filed the appeal) was that the proj ect generates
too much traffic, and that the PUD does not allow this type of use. However, when asked by the Hearing
Examiner whether the Comparable Use Determination process is nonetheless appropriate in this case, the
Appellant replied with “of course:”
The specific argument now being made by the Appellant, that section 10.02.06.K of the Collier County
Land Development Code requires the Applicant to include specific language in the PUD allowing for a
CUD determination, is being raised for the first time on appeal. As set forth above, the Board can only
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reverse the decision of the Hearing Examiner based on evidence in the official record at the hearing. The
Appellant failed to raise this argument at the hearing. This is evident from the minutes of the Mar ch 24,
2022, Hearing Examiner hearing as well as the letter sent to County staff on September 8, 2021, from
attorney Craig D. Blume, on behalf of Dolphin Auto Spa, opposing the car wash.
The requirement that the appeal must relate to what was raised durin g the proceeding is consistent with
Florida law. Florida law is clear that to be preserved for appeal, the specific legal ground upon which a
claim is based must be raised at the hearing and a claim different than that will not be heard on appeal.
Tillman v. State, 471 So.2d 32, 35 (Fla. 1985); see also Dep’t of Bus. & Prof’l Regulation v. Harden, 10
So.3d 647, 649 (Fla. 1st DCA 2009). This is further evident by the fact that certiorari review is not de
novo review, but rather is limited to the record on appeal. See City of Jacksonville Beach v. Marisol Land
Dev., Inc., 706 So.2d 354, 355 (Fla. 1st DCA 1998). The same principle applies to quasi-judicial and
administrative hearings. See Harden, 10 So. 3d 647 at 649.
In summary, the County Attorney is of the opinion that the appeal should be denied as the Appellant does
not have standing to appeal this matter, and even if it did, has waived the arguments presented on appeal
by failing to present them before the Hearing Examiner. Should the Board wish to hear the appeal, the
County Attorney recommends that it be scheduled for a future meeting.
FISCAL IMPACT: None at this time.
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board of County Commissioners, sitting as the Board of Zoning
Appeals, deny the appeal of the March 24, 2022, decision of the Hearing Examiner.
Prepared by: Jeffrey A. Klatzkow, County Attorney
ATTACHMENT(S)
1. HEX No. 2022-17 (PDF)
2. Appeal letter Z. Lombardo Esq. 5-20-22 (PDF)
3. Appeal Application (PDF)
4. Response to Executive Summary - Z. Lombardo Esq. 6-7-22 (PDF)
5. Response of applicant Modwash - J Wright Esq. 6-8-22 (PDF)
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06/14/2022
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.8
Doc ID: 22419
Item Summary: Recommendation that the Board of County Commissioners, sitting as the Board
of Zoning Appeals, deny the appeal of the March 24, 2022, decision of the Hearing Examiner.
Meeting Date: 06/14/2022
Prepared by:
Title: Legal Assistant – County Attorney's Office
Name: Wanda Rodriguez
05/31/2022 4:38 PM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
05/31/2022 4:38 PM
Approved By:
Review:
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 05/31/2022 4:48 PM
Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 06/01/2022 8:19 AM
Office of Management and Budget Susan Usher Additional Reviewer Completed 06/07/2022 8:30 AM
County Manager's Office Dan Rodriguez Level 4 County Manager Review Completed 06/08/2022 8:21 AM
Board of County Commissioners Geoffrey Willig Meeting Pending 06/14/2022 9:00 AM
16.K.8
Packet Pg. 2172
HEX NO. 2022-17
HEARING EXAMINER DECISION
DATE OF HEARING.
March 24, 2022
PF.TTTI"N
Petition No. CUD-PL20210001966 - Mod Wash Comparable Use Determination - A request
for a comparable use determination that a new automated carwash is comparable,
compatible, and consistent with the list of permitted uses in section 4.4.A of the Artesa Pointe
Planned Unit Development, Ord. No. 03-46, as amended. The proposed development is on a
vacant f1.01-acre parcel, folio no. 81076000095, at the southeast quadrant of the intersection
of Collier Boulevard and Pasedo Drive, approximately one-half mile south of Tamiami Trail
East, in Section 3, Township 51 South, Range 26 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The Petitioner desires to construct a new automated car wash on the subject parcel which is
currently going through Site Development Plan (SDP) process (PL20210001098). The
undeveloped ±1.01-acre site is Outparcel #1 in the commercial section of the Artesa Point PUD
which includes a Wa1Mart Superstore.
STAFF RECOMMENDATION.
Approval with conditions.
FTNTITNC C
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. A newspaper advertisement for the Hearing Examiner public meeting is the only notice
required per Administrative Code (Chapter 3L), and LDC § 10.03.06.0 in accordance with F.S.
Page 1 of 6
16.K.8.a
Packet Pg. 2173 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
125.66. The newspaper advertisement posted in the Naples Daily News on May 4, 2022. Per
LDC and Administrative Code a Neighborhood Information Meeting (NIM), posting of a sign
on the subject property, and a mailing to surrounding property owners is not required.
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 six speakers at the public hearing, including the owners and
employees of Dolphin Auto Spa Express Car Wash located at 6240 Collier Boulevard, Naples,
Florida, who provided objections to the Petition generally based on economic competition,
location, high volume of traffic, noise, pollution, and distance from Dolphin Auto Spa Express
Car Wash. Dolphin Auto Spa Express Car Wash is located approximately .7 miles from the
proposed car wash. Craig D. Blume, Esq. submitted a letter of objection dated September 8,
2021, and another letter dated March 23, 2022, which was made available to the Hearing
Examiner at the March 24th meeting. As such, attorney for Petitioner was given additional
time to respond to Mr. Blume's second letter. Attorney Jeff Wright represented the Petitioner
along with urban planner Ken Gallander, AICP and transportation engineer Yury Bykau, P.E.
It is important to note that generally in a quasi-judicial hearing, expert and layperson testimony
is permissible for consideration to the extent it is relevant to the applicable criteria. Attorneys
are restricted to legal arguments. While the points made by the various representatives of
Dolphin Auto Spa Express Car Wash are clear, the clear message is that they are concerned
about the economic impact on their business. Collier County Code, Land Development Code,
and Administrative Code has no provisions that require distance separation among car washes,
nor are those codes designed to regulate economic competition among car wash businesses.
7. The County's Land Development Code Section 10.02.06.K lists the criteria for a comparable
use determination. The Hearing Examiner may approve a comparable use determination based
on the following standards, as applicable.1
1. The proposed use possesses similar characteristics to the other permitted uses in the zoning
district, overlay, or PUD, including but not limited to the following:
Operating hours.
The record evidence and testimony from the public hearing reflects that the
applicant will restrict the operating hours from 8:00 a.m. to 8:00 p.m. The
existing supercenter store is open between 6:00 a.m. and 11:00 p.m.; the gas
station/convenience store is open from 5:30 a.m. to 10:30 p.m. Both stores are
open 5 hours more per day or 35 hours per week than the proposed car wash.
The car wash is less intensive yet compatible with other uses in the PUD based
on hours of operation.
ii. Traffic volume generated/attracted.
The record evidence and testimony from the public hearing reflects that The
Institute of Transportation Engineers (ITE) Trip Generation Manual IOth Edition
The Hearing Examiner's findings are italicized.
Page 2 of 6
16.K.8.a
Packet Pg. 2174 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
lists the weekday PMpeak hour number of trips for an automated car wash (ITE
948) at 78 total trips. Similarly, the number of trips for a free-standing discount
superstore (ITE #813) is 703 net trips after subtracting pass -by trips per County
Traffic Impact Statement (TIS) guidelines; and the number of net trips for a
convenience market with gasoline pumps (ITE 853) is 111). These numbers
indicate that the proposed car wash will generate significantly fewer trips per
hour. Based on the ITE manual, the carwash is expected to generate 89 percent
less trips than the superstore, and 30 percent less than the convenience market.
iii. Type of vehicles associated with the use.
The record evidence and testimony from the public hearing reflects that The types
of vehicles that will use the car wash are the same type as will visit either the
superstore or gas station/convenience store. In addition, large semi -trucks, box
trucks and other vehicles greater than seven feet two inches (7' 2') will not be
able to use the carwash due to ceiling height of the building. Too, there will be a
greater number of semi -trucks and tank trucks delivering to both the superstore
and convenience market.
iv. Number and type of required parking spaces.
The record evidence and testimony from the public hearing reflects that the
subject parcel is included in a "Declaration of Easements with Covenants and
Restrictions Affecting Land" which has a nonexclusive reciprocal easement over,
through and around the common areas that includes sharing the more than 1,000
parking spaces. LDC §4.05.04. G requires one parking space per employee of the
largest shiftfor an automatic car wash. There will be four employees working on
the largest shift. The four required spaces are not explicitly shown of the site
plan; however, the Declaration is referenced to explain why these spaces are not
shown.
V. Business practices and activities.
The record evidence and testimony from the public hearing reflects that the
proposed car wash is intended to serve the surrounding residential population as
do the existing superstore, convenience story with gasoline pumps and other
permitted uses in the PUD. The carwash will add an additional service to those
already in existence. The hours of operation will allow residents and visitors to
have their cars washed at a time convenient to them while not exceeding the hours
of other uses currently in the PUD.
2. The effect 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.
Page 3 of 6
16.K.8.a
Packet Pg. 2175 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
The record evidence and testimony from the public hearing reflects that given
that there will consistently be more cars visiting the superstore than the carwash,
glare created by cars waiting in line to be washed will be significantly less than
the superstore. Odors that may be created by the carwash will be limited to
soap/cleaning related smells. Odors that may be created by the convenience
store/gas station will be related to oil and gasoline. In general, soap/cleaning
odors are less onerous than oil and gasoline odors. Seibein Acoustic conducted
a sound analysis for another, similar Mod Wash facility which included an area
map overlaid with a noise contour map. One conclusion of the study is that the
carwash facility examined would meet the requirements of noise ordinances in
many suburban counties where the threshold tends to be 60-65 decibels. For the
proposed carwash facility, there are approximately a dozen homes within 500
feet of the proposed carwash with no home being closer than approximately 330
feet. While admittedly a rough approximation, applying the noise contour map to
the proposed project area shows the decibel level 330 feet from the carwash being
less than 60 decibels. These homes also sit outside of the PUD, on the opposite
side of Collier Blvd., a busy six -lane road that generates significant noise from
traffic. The carwash is also located in the vicinity of a Murphy s gas
station/convenience store and WalMart superstore. The noise generated by the
carwash will not exceed that of the other surrounding uses and roads. The
applicant has committed to mitigating noise associated with the carwash
operations that are determined to exceed 80 decibels.
3. 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.
The record evidence and testimony from the public hearing reflects that the
proposed use is permitted in the Henderson Creek Mixed -Use Subdistrict of the
FLUE which states that, "the maximum intensity of commercial uses are those
allowed in the C-4, General Commercial, Zoning District". Car washes are
classified under SIC 7542 which is a permitted use in C-4 Districts subject to the
requirements of LDC §5.05.11 when, and if, the carwash abuts a residential
district.
4. The proposed use shall be compatible and consistent with the other permitted uses in the
zoning district, overlay, or PUD.
The record evidence and testimony from the public hearing reflects that the
proposed use is on the east side of Collier Blvd., south of Tamiami Trail; and as
stated above, compatible, and consistent with other permitted uses in commercial
tract of the PUD. Within the PUD, the closest residential dwelling is
approximately 900 feet from the carwash with the superstore acting as a sound
buffer for much of the residential section of the PUD.
Page 4 of 6
16.K.8.a
Packet Pg. 2176 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
5. Any additional relevant information as may be required by County Manager or Designee.
The record evidence and testimony from the public hearing reflects that is not
required.
ANALYSTS.
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 Section 10.02.06.K
of the Land Development Code to approve this Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition Number PCUD-PL20210001966, filed by
Kendrick Gallander, AICP of RWA, Inc. representing Rook at Naples, LLC and ModWash, LLC,
with respect to the property described as ±1.01-acre undeveloped parcel (#81076000095) without
an official street address and located in the southeast quadrant of the intersection of Collier
Boulevard and Pasedo Drive approximately one -quarter mile south the intersection of Collier
Boulevard and Tamiami Trail East (US 41) in Section 3, Township 51 South, Range 26 East,
Collier County, Florida, for the following:
A request for a determination that the proposed use of a new automated car wash (SIC
7542) is comparable in nature to the list of permitted uses in Section 4.4 (Commercial
tract) of the Artesa Point Planned Unit Development (PUD) adopted by Ordinance
Number 03-46, as amended.
Said changes are fully described in the Site Plan and Survey attached as Exhibit "A" and are subject
to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A — Site Plan and Survey
LEGAL DESCRIPTION.
The subject property is ±1.01-acre undeveloped parcel (#81076000095) without an official street
address and located in the southeast quadrant of the intersection of Collier Boulevard and Pasedo
Drive approximately one -quarter mile south the intersection of Collier Boulevard and Tamiami
Trail East (US 41) in Section 3, Township 51 South, Range 26 East, Collier County, Florida
Page 5 of 6
16.K.8.a
Packet Pg. 2177 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
2. Hours of operation will be limited to Monday through Sunday from 8:00 a.m. to 8:00 p.m.
3. The applicant shall commit to mitigating noise associated with the carwash operations that
are determined to exceed 80 decibels 100 feet from the building.
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.
April 22, 2022
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 6 of 6
16.K.8.a
Packet Pg. 2178 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
EXHIBIT "A"
16.K.8.a
Packet Pg. 2179 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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16.K.8.a
Packet Pg. 2180 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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16.K.8.a
Packet Pg. 2181 Attachment: HEX No. 2022-17 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
16.K.8.b
Packet Pg. 2182 Attachment: Appeal letter Z. Lombardo Esq. 5-20-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
16.K.8.b
Packet Pg. 2183 Attachment: Appeal letter Z. Lombardo Esq. 5-20-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
16.K.8.b
Packet Pg. 2184 Attachment: Appeal letter Z. Lombardo Esq. 5-20-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
16.K.8.b
Packet Pg. 2185 Attachment: Appeal letter Z. Lombardo Esq. 5-20-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
16.K.8.b
Packet Pg. 2186 Attachment: Appeal letter Z. Lombardo Esq. 5-20-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
16.K.8.b
Packet Pg. 2187 Attachment: Appeal letter Z. Lombardo Esq. 5-20-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
16.K.8.b
Packet Pg. 2188 Attachment: Appeal letter Z. Lombardo Esq. 5-20-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
COLLIER COUNTY GOVERNMENT 2800 NORTH HORSESHOE DRIVE
GROWTH MANAGEMENT DIVISION/ NAPLES, FLORIDA 34104
PLANNING AND REGULATION (239) 252-2400 FAX (239) 252-6358
www.colliergov.net
1
APPEAL OF ADMINISTRATIVE DECISION OF
ADMINISTRATIVE OFFICIAL
Section 250-58
Sec. 250-58. Appeal from decision of administrative official.
(a) 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. Such appeals shall be taken within 30 days by filing with the administrative official a written
notice specifying the grounds thereof. The administrative official shall forthwith transmit to the board
all papers, documents, and maps constituting the record of the action from which an appeal is taken.
Due public notice of the hearing on the appeal shall be given. Upon the hearing, any party may
appear in person or by attorney. A decision shall be reached by the appellate body within 30 days of
the hearing; otherwise, the action appealed from shall be deemed affirmed.
An affected property owner is defined as an owner of property located within 300 feet of the
property lines of the land for which the interpretation is effective.
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.
A request for appeal shall be filed in writing. Such request shall state the basis for the appeal and
shall include any pertinent information, exhibits and other backup information in support of the
appeal. In accordance with Resolution No. 2007-160, the fee for the application and processing of an
appeal is $1,000.00 and shall be paid by the applicant at the time the request is submitted.
The Board of Zoning Appeals shall hold an advertised public hearing on the appeal and shall
consider the administrative decision and any public testimony in light of the growth management
plan, the future land use map, the Land Development Code or the official zoning atlas. The Board of
Zoning Appeals shall adopt the County official's administrative decision, with or without modifications
or conditions, or reject the administrative decision. The Board of Zoning Appeals shall not be
authorized to modify or reject the County official's administrative decision unless such Board finds
that the decision is not supported by substantial competent evidence or that the decision is contrary
to the growth management plan, the future land use map, the Land Development Code or the official
zoning atlas.
Requests for Appeal of Administrative Decision should be addressed to:
Growth Management Division/Planning and Regulation
Attn: Business Center
2800 North Horseshoe Drive
Naples, Florida 34104
16.K.8.c
Packet Pg. 2189 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
COLLIER COUNTY GOVERNMENT 2800 NORTH HORSESHOE DRIVE
GROWTH MANAGEMENT DIVISION/ NAPLES, FLORIDA 34104
PLANNING AND REGULATION (239) 252-2400 FAX (239) 252-6358
www.colliergov.net
2
APPEAL OF ADMINISTRATIVE DECISION OF
ADMINISTRATIVE OFFICIAL
Section 250-58
PROJECT NUMBER
PROJECT NAME
DATE PROCESSED
APPLICANT INFORMATION
NAME OF OWNER _________________________________________________________
ADDRESS ________________________ CITY ___________ STATE ______ ZIP ______
TELEPHONE # __________________ CELL # ______________ FAX # ______________
E-MAIL ADDRESS _________________________________________________________
NAME OF AGENT/APPLICANT _______________________________________________
FIRM ____________________________________________________________________
ADDRESS ________________________ CITY ___________ STATE ______ ZIP ______
TELEPHONE # __________________ CELL # ______________ FAX # ______________
E-MAIL ADDRESS _________________________________________________________
REQUEST DETAIL
Appeal of Application No. AR/PL-___________________________________
(Please reference the application number that is being appealed)
Attach a statement for the basis of the appeal including any pertinent information,
exhibits and other backup information in support of the appeal.
Submit required application fee in the amount of $1,000.00 made payable to the Board
of County Commissioners.
To be completed by staff
16.K.8.c
Packet Pg. 2190 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
EST. 1971
MARKJ. WOODWARD
Board Certi£ed: Real &late
Law and in Corrlominium &
Planned D evelopment Law
ANTHONY P . PIRES, JR
Board Certified: City, County,
and Local Government Law
J. CHRISTOPHER LOMBARDO
ANTHONY J. DIMORA
Licensed in FL and OH
LENORE T. BRAKEFIELD
CRAIG R WOODWARD
Senior Counsel
Board Certified: Real Estate Law
KENNETH V . MUNDY
ZACHARYW. LOMBARDO
CAMERON G. WOODWARD
Ross E. SCHUIMAN
Licensed in FL and NY
F. SCOTT PAUZAR, III
CHRISTOPHER R. HEFLIN
RE P LY TO:
!XI 3200 TAMIAMI TRAIL N .
SUITE 200
NAPLES , FL 34103
239 -649 -6555
239 -649 -7342 FAX
0 606 BALD EAGLE ORNE
SUITE 500
P.O . BOX ONE
MARCO ISIAND , FL 34146
239-394-5161
239-642-6402 FAX
WWW.WPL-LEGAL.COM
WOODWARD, PIRES & LOMBARDO, P.A.
ATTORNEYS AT LAW
May 20, 2022
By upload to the GMO Public Portal
Growth Management Division/Planning and Regulation
Attn: Business Center
Collier County
2800 North Horseshoe Drive
Naples, Florida 34104
Subject: Appeal and Notice of Appeal of Hearing Examiner
Decision 2022-17 Rendered April 22, 2022, regarding
CUD-PL20210001966
This firm represents FTY Florida, LLC, and Niagara Falls Hydro,
LLC, (both are Florida Limited Liability Companies) the owners of
Dolphin Auto Spa Express Car Wash located on S.R. 951 in Collier
County, Florida (the "Appellants"). Because a comparable use
determination was not permitted under the Collier County Land
Development Code (the "LDC") nor under the applicable PUD
ordinance, the Appellants hereby, pursuant to section 250-58, Collier
County Code of Ordinances, (the "County Code") timely appeal and give
notice of appeal of the comparable use determination rendered April 22,
2022, enclosed (the "Subject CUD") as: 1. there is no ability to obtain
approval of the Subje~t CUD; and, 2. The Hearing Examiner ("HEX")
had and has no jurisdiction or authority to consider or approve the
Subject CUD.1
1 This filing and the submittal of the various documents, materials, and
arguments herein as part of this appeal is and is being made and provided
while reserving the right to supplement this filing with additional arguments and
additional materials once discovered and/or obtained. No rights, concerns, or
objections of the Appellants concerning the Subject Comparable Use
Determination are waived by anything stated herein or omitted herefrom and
the right to present, make and submit additional arguments and materials is
specifically reserved
1 of 7
16.K.8.c
Packet Pg. 2191 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Section 10.02.06.K of the LDC provides that the Administrative Code
establishes the process for obtaining a comparable use determination. The
Administrative Code, on page 84 specifically identifies section 250-58 of the
County Code as the appellate process for appealing a comparable use
determination. This is further confirmed by the appellate form required to be filed
with this appeal. This specific and explicit designation is not present in the code
sections governing other quasi-judicial determinations, such as variances, which
in its comparable procedure section, section 10.09.00, does not designate directly
or indirectly (e.g. through the Administrative Procedures) the appellate process,
which is why variances are appealed by way of section 2-88, County Code, the
catch all provision for appeals of hearing examiner decisions that do not otherwise
have appellate procedures.
The Appellants, by their authorized agents, attended and participated at the
March 24, 2022, HEX hearing on the Subject CUD. Thus, the Appellants are both
aggrieved persons under section 250-58, County Code and hereby provide notice
of this appeal. In addition to participating in the hearing leading to the Subject CUD
and being referenced in the Subject CUD, Appellants, as nearby car wash
operators, are aggrieved by the processing and approval of the Subject CUD for
which no authority exists in the LDC. Aggrieved persons are not defined in section
250-58, but are defined elsewhere, for example in section 1.06.01 of the LDC 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, LDC, 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."
Here, the Appellants belong to a group of persons, specifically car wash
owners and operators, which suffer an adverse effect by the improper use of a
comparable use determination that will cause damage to the Appellants as a result
of the decreased regulation on competitors. This is distinct from an argument that
competition hurts the Appellant, it is, instead, that allowing competitors special
2 of 7
16.K.8.c
Packet Pg. 2192 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
privileges by not enforcing regulations creates a special damage to Appellants by
way of not granting it special regulatory privileges that are being granted to
competitors. Additionally, due to Appellant's close proximity, on the same side of
the same road, to the applicant, Appellants have an adverse interest that goes
beyond the unique adverse interest shared by car wash owners and operators and
is unique to Appellant.
The Subject CUD for which no authority exists in the LDC improperly
granted a special privilege to the applicant. Because there is no legal basis for the
processing and approval of the Subject CUD, the group of car wash owners and
operators in close proximity to the Subject CUD and therefore have special
damages as the applicant here is being provided a special privilege to the special
detriment of Appellants, who were not provided this special privilege and instead
had to limit their options in site selection and incur additional regulatory costs. See
Chapman v. Town of Redington Beach , 282 So. 3d 979, 984-85 (Fla. 2d DCA
2019).
I. The Processing and Approval of the Subject CUD was Erroneous
Section 2.03 .00 of the Collier County Land Development Code ("LDC")
contains the rules for the application and interpretation of the LDC. More
specifically, section 2.03.00.A states as follows:
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.
§ 2.03.00 , LDC (emphasis added).
3 of 7
16.K.8.c
Packet Pg. 2193 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
While section 10.02.06.K., LDC, contains the process and the procedure for
the comparable use determination, that process and procedure is triggered only if
there is authority for a person to seek a comparable use determination. The ability
to seek a comparable use determination exists if and only if:
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.
By the adoption of Collier County Ordinance 2003-46, the Collier County
Commission approved the Artesa Pointe PUD, enclosed (the "PUD").2 Section IV
of the Artesa Pointe PUD contains the permitted uses in the commercial tract. See
§ 4.4, Artesa Pointe PUD, pp. 24-25.
Section IV of the Artesa Pointe PUD does not contain the language cited
above in section 2.03.00.A. that would provide the ability to apply for a comparable
use determination. The following is noticeably absent from Section IV of the Artesa
Pointe PUD: "any other use which is comparable in nature with the foregoing uses
and is consistent with the permitted uses and purpose and intent and statement of
the district', or any similar phrase".
This is in marked contrast to Section Ill of the Artesa Pointe PUD, which, as
to residential accessory uses only provides the opportunity to apply for a
comparable use determination limited solely to residential accessory uses3 .
Further, the above interpretation is confirmed by staff in a recent proposed
amendment to the LDC, enclosed. In PL20220000207, staff, on page 1, paragraph
2, describes the current comparable use determination process as: "The CUD
process is currently connected to the list of permitted uses in the Commercial
2 The Artesa Pointe PUD was amended one time the following year in Collier County
Ordinance 2004-17, an amendment not germane to this appeal.
3 In the R Residential Section Ill as to accessory uses only, see PUD § 3.4.B.2., p. 21.
4 of 7
16.K.8.c
Packet Pg. 2194 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Zoning Districts (C-1 through C-5), Business Park (BP), Public Use (P), Golden
Gate Parkway Overlay District (GGPOD), and the Planned Unit Development
district (PUD), when such PUD contains specific provisions within its
respective ordinance." (Emphasis added.) The proposed amendment then goes
on to propose a change that would allow a comparable use determination to be
made in all districts, including PUDs, through the conditional use process, except
when PUDs contain the "specific provision", which then would allow the current
process. Thus, it is clearly the case that, now, before this amendment is made,
there was no authority to make a comparable use determination in a PUD unless
the PUD "contains specific provisions within its respective ordinance".
Here, there is no such provision. There was no authority for the Subject
CUD.
Otherwise, LDC amendment PL20220000207 has no meaning and staff's
analysis in the enclosed report is incorrect. Appellant, however, agrees with staff
and thus asks the Subject CUD to be reversed for lack of authority as explained
herein.
In the Subject CUD, there was no finding that a comparable use
determination was allowable under the LDC or the PUD. There was no citation to
any section of the PUD that would allow a comparable use determination to be
made as to the commercial properties . Instead, the HEX simply made a finding
regarding the criteria applicable to the consideration of a valid comparable use
determination application. Subject CUD, ,I 7.
Therefore , because a comparable use determination is not permitted or
authorized in Section IV of the Artesa Pointe PUD, the approval of the Subject
CUD is clearly erroneous as a matter of law and the HEX had no jurisdiction to
consider the Subject CUD. There is simply no legal authority for issuing a
comparable use determination for the properties identified in the PUD that are
5 of 7
16.K.8.c
Packet Pg. 2195 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
subject to Section IV. As a result, the Subject Comparable Use Determination
should be reversed and denied and deemed void ab initio.
Any other interpretation ignores the plain language of the County Code, the
LDC and the PUD.
II. A Comparable Use Determination Is Not Available For Commercial Uses
In the PUD Ordinance
Local government ordinances are subject to the same rules of construction
as state statutes. Angelo's Aggregate Materials, Ltd. v. Pasco Cty., 118 So. 3d
971, 975 (Fla. 2d DCA 2013) (citing Rinker Materials Corp. v. City of N. Miami, 286
So. 2d 552, 553-54 (Fla. 1973)). Accordingly, "the general rule applies that the
courts may not insert words or phrases into an enactment in order to express a
speculative intention unless it clearly appears that the omission was inadvertent."
Rose v. Hillsboro Beach, 216 So. 2d 258, 259 (Fla. 4th DCA 1968). Further, local
government ordinances, like state statutes, are to be given their plain meaning.
Because the PUD provides, in the residential section, for a comparable use
analysis, interpreting the ordinance under the legislative interpretive maxims of
expressio unius est exclusio alterius (a canon of construction holding that to
express or include one thing implies the exclusion of the other or the alternative),
and simply the plain language doctrine renders the conclusion that it is specifically
the case that in the Commercial section of the PUD, the listed uses are all that are
permitted and there is no authority for approving any non-listed commercial uses
by way of a comparable use determination.
To, despite the plain language of the ordinance, which does in other places
allow for a comparable use determination , engage in a comparable use
determination is legal error under the PUD ordinance.
Therefore, because a comparable use determination was not permitted
under the PUD ordinance, the approval of the Subject CUD is clearly erroneous as
a matter of law. As a result, the Subject Comparable Use Determination should
be reversed and denied and deemed void ab initio.
6 of 7
16.K.8.c
Packet Pg. 2196 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Any other interpretation ignores the plain language of the County Code and
LDC and the PUD.
Ill. Conclusion
Because, as stated above, the comparable use determination was legally
erroneous, the Subject Comparable Use Determination should be reversed and
denied and deemed void ab initio.
Sincerely,
Counsel for Appellants
Enclosures as indicated
7 of 7
16.K.8.c
Packet Pg. 2197 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
DATE OF HEARING.
March 24, 2022
PETITION.
HEX NO. 2022-17
HEARING EXAMINER DECISION
Petition No. CUD-PL20210001966 -Mod Wash Comparable Use Determination -A request
for a comparable use determination that a new automated carwash is comparable,
compatible, and consistent with the list of permitted uses in section 4.4.A of the Artesa Pointe
Planned Unit Development, Ord. No. 03-46, as amended. The proposed development is on a
vacant ±1.01-acre parcel, folio no. 81076000095, at the southeast quadrant of the intersection
of Collier Boulevard and Pasedo Drive, approximately one-half mile south of Tamiami Trail
East, in Section 3, Township 51 South, Range 26 East, Collier County, Florida.
GENERAL PURPOSE FOR THE PETITION.
The Petitioner desires to construct a new automated car wash on the subject parcel which is
currently going through Site Development Plan (SDP) process (PL20210001098). The
undeveloped ±1.01-acre site is Outparcel #1 in the commercial section of the Artesa Point PUD
which includes a W alMart Superstore.
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 m-person m 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. A new spaper advertisement for the Hearing Examiner public meeting is the only notice
required per Administrative Code (Chapter 3L), and LDC §10.03.06.0 in accordance with F.S.
Page 1 of 6
16.K.8.c
Packet Pg. 2198 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
§ 125.66. The newspaper advertisement posted in the Naples Daily News on May 4, 2022. Per
LDC and Administrative Code a Neighborhood Information Meeting (NIM), posting of a sign
on the subject property, and a mailing to surrounding property owners is not required.
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 six speakers at the public hearing, including the owners and
employees of Dolphin Auto Spa Express Car Wash located at 6240 Collier Boulevard, Naples,
Florida, who provided objections to the Petition generally based on economic competition,
location, high volume of traffic, noise, pollution, and distance from Dolphin Auto Spa Express
Car Wash. Dolphin Auto Spa Express Car Wash is located approximately . 7 miles from the
proposed car wash. Craig D. Blume, Esq. submitted a letter of objection dated September 8,
2021, and another letter dated March 23, 2022, which was made available to the Hearing
Examiner at the March 24 th meeting. As such, attorney for Petitioner was given additional
time to respond to Mr. Blume's second letter. Attorney Jeff Wright represented the Petitioner
along with urban planner Ken Gallander, AICP and transportation engineer Yury Bykau, P.E.
It is important to note that generally in a quasi-judicial hearing, expert and layperson testimony
is permissible for consideration to the extent it is relevant to the applicable criteria. Attorneys
are restricted to legal arguments. While the points made by the various representatives of
Dolphin Auto Spa Express Car Wash are clear, the clear message is that they are concerned
about the economic impact on their business. Collier County Code, Land Development Code,
and Administrative Code has no provisions that require distance separation among car washes,
nor are those codes designed to regulate economic competition among car wash businesses.
7. The County's Land Development Code Section 10.02.06.K lists the criteria for a comparable
use determination. The Hearing Examiner may approve a comparable use determination based
on the following standards, as applicable. 1
1. The proposed use possesses similar characteristics to the other permitted uses in the zoning
district, overlay, or PUD, including but not limited to the following:
1. Operating hours.
The record evidence and testimony from the public hearing reflects that the
applicant will restrict the operating hours from 8:00 a.m. to 8:00 p.m. The
existing supercenter store is open between 6:00 a.m. and 11:00 p.m.; the gas
station/convenience store is open from 5:30 a .m. to 10:30 p .m. Both stores are
open 5 hours more per day or 35 hours per week than the proposed car wash.
The car wash is less intensive yet compatible with other uses in the PUD based
on hours of operation.
11. Traffic volume generated/attracted.
The record evidence and testimony from the public hearing reflects that The
Institute of Transportation Engineers (JTE) Trip Generation Manual 10th Edition
1 The Hearing Examiner's findings are italicized .
Page 2 of 6
16.K.8.c
Packet Pg. 2199 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
lists the weekday PM peak hour number of trips for an automated car wash (ITE
#948) at 78 total trips. Similarly, the number of trips for a free-standing discount
superstore (ITE #813) is 703 net trips after subtracting pass-by trips per County
Traffic Impact Statement (TIS) guidelines; and the number of net trips for a
convenience market with gasoline pumps (ITE 853) is 111). These numbers
indicate that the proposed car wash will generate significantly fewer trips per
hour. Based on the ITE manual, the carwash is expected to generate 89 percent
less trips than the superstore, and 30 percent less than the convenience market.
111. Type of vehicles associated with the use.
The record evidence and testimony from the public hearing reflects that The types
of vehicles that will use the car wash are the same type as will visit either the
superstore or gas station/convenience store. In addition, large semi-trucks, box
trucks and other vehicles greater than seven feet two inches (7 ' 2 ') will not be
able to use the carwash due to ceiling height of the building. Too, there will be a
greater number of semi-trucks and tank trucks delivering to both the superstore
and convenience market.
1v. Number and type of required parking spaces.
The record evidence and testimony from the public hearing reflects that the
subject parcel is included in a "Declaration of Easements with Covenants and
Restrictions Affecting Land" which has a nonexclusive reciprocal easement over,
through and around the common areas that includes sharing the more than 1,000
parking spaces. LDC §4. 05. 04. G requires one parking space per employee of the
largest shift for an automatic car wash. There will be four employees working on
the largest shift. The four required spaces are not explicitly shown of the site
plan; however, the D eclaration is referenced to explain why these spaces are not
shown.
v. Business practices and activities.
The record evidence and testimony from the public hearing reflects that the
proposed car wash is intended to serve the surrounding residential population as
do the existing superstore, convenience story with gasoline pumps and other
permitted uses in the PUD. The carwash will add an additional service to those
already in existence. The hours of operation will allow residents and visitors to
have their cars washed at a time convenient to them while not exceeding the hours
of other uses currently in the PUD.
2 . The effect 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.
Page 3 o f 6
16.K.8.c
Packet Pg. 2200 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
The record evidence and testimony from the public hearing reflects that given
that there will consistently be more cars visiting the superstore than the carwash,
glare created by cars waiting in line to be washed will be significantly less than
the superstore. Odors that may be created by the carwash will be limited to
soap/cleaning related smells. Odors that may be created by the convenience
store/gas station will be related to oil and gasoline. In general, soap/cleaning
odors are less onerous than oil and gasoline odors. Seibein Acoustic conducted
a sound analysis for another, similar Mod Wash facility which included an area
map overlaid with a noise contour map. One conclusion of the study is that the
carwash facility examined would meet the requirements of noise ordinances in
many suburban counties where the threshold tends to be 60-65 decibels . For the
proposed carwash facility, there are approximately a dozen homes within 500
feet of the proposed carwash with no home being closer than approximately 330
feet. While admittedly a rough approximation, applying the noise contour map to
the proposed project area shows the decibel level 330 feet from the carwash being
less than 60 decibels. These homes also sit outside of the PUD, on the opposite
side of Collier Blvd., a busy six-lane road that generates significant noise from
traffic. The carwash is also located in the vicinity of a Murphy's gas
station/convenience store and WalMart superstore. The noise generated by the
carwash will not exceed that of the other surrounding uses and roads . The
applicant has committed to mitigating noise associated with the carwash
operations that are determined to exceed 80 decibels.
3. 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.
The record evidence and testimony from the public hearing reflects that the
proposed use is permitted in the Henderson Creek Mixed-Use Subdistrict of the
FLUE which states that, "the maximum intensity of commercial uses are those
allowed in the C-4, General Commercial, Zoning District ". Car washes are
classified under SIC 7542 which is a permitted use in C-4 Districts subject to the
requirements of LDC §5. 05.11 when, and if, the carwash abuts a residential
district.
4. The proposed use shall be compatible and consistent with the other permitted uses in the
zoning district, overlay, or PUD.
The record evidence and testimony from the public hearing reflects that the
proposed use is on the east side of Collier Blvd., south of Tamiami Trail; and as
stated above, compatible, and consistent with other permitted uses in commercial
tract of the PUD. Within the PUD, the closest residential dwelling is
approximately 900 feet from the carwash with the superstore acting as a sound
buffer for much of the residential section of the PUD.
Page 4 of 6
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Packet Pg. 2201 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
5. Any additional relevant information as may be required by County Manager or Designee.
The record evidence and testimony from the public hearing reflects that is not
required.
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 Section 10.02.06.K
of the Land Development Code to approve this Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition Number PCUD-PL20210001966, filed by
Kendrick Gallander, AICP of RWA, Inc. representing Rook at Naples, LLC and ModWash, LLC,
with respect to the property described as ±1.01-acre undeveloped parcel (#81076000095) without
an official street address and located in the southeast quadrant of the intersection of Collier
Boulevard and Pasedo Drive approximately one-quarter mile south the intersection of Collier
Boulevard and Tamiami Trail East (US 41) in Section 3, Township 51 South, Range 26 East,
Collier County, Florida, for the following:
A request for a determination that the proposed use of a new automated car wash (SIC
7542) is comparable in nature to the list of permitted uses in Section 4.4 (Commercial
tract) of the Artesa Point Planned Unit Development (PUD) adopted by Ordinance
Number 03-46, as amended.
Said changes are fully described in the Site Plan and Survey attached as Exhibit "A" and are subject
to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A -Site Plan and Survey
LEGAL DESCRIPTION.
The subject property is ±1.01-acre undeveloped parcel (#81076000095) without an official street
address and located in the southeast quadrant of the intersection of Collier Boulevard and Pasedo
Drive approximately one-quarter mile south the intersection of Collier Boulevard and Tamiami
Trail East (US 41) in Section 3, Township 51 South, Range 26 East, Collier County, Florida
Page 5 of 6
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Packet Pg. 2202 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
CONDITIONS.
1. All other applicable state or federal permits must be obtained before commencement of the
development.
2. Hours of operation will be limited to Monday through Sunday from 8:00 a.m. to 8:00 p.m.
3. The applicant shall commit to mitigating noise associated with the carwash operations that
are determined to exceed 80 decibels 100 feet from the building.
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.
April 22, 2022
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 6 of 6
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Packet Pg. 2203 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
EXHIBIT '' A 11
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Packet Pg. 2204 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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16.K.8.c
Packet Pg. 2205 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-
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Packet Pg. 2206 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
~ --~ c~m #\ \
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ORDINANCE NO. 03 -4 6 --~-
AN ORDINANCE AMENDING ORDINANCE NUMBER 91-102:
THE COLLIER COUNTY LAND DEVELOPMENT CODE WHICH-
INCLUDES THE COMPREHENSIVE ZONING REGULA TI ON ff . ·
FOR THE UNINCORPORATED AREA OF COLLIER COUNTY:, .
FLORIDA BY AMENDING THE OFFICIAL ZONING ATLAS MAP .
NUMBERED 1603S AND BY CHANGING THE ZONING
CLASSIFICATION OF THE HEREIN DESCRIBED REAi;: . :
PROPERTY FROM "RSF-3" AND "PUD" TO "PUD" PLANNE~~ ·: ..
UNIT DEVELOPMENT KNOWN AS ARTESA POINTE PUD FOR:_ ; •
PROPERTY LOCATED ON THE EAST SIDE OF COLLIEJt?.1,~
BOULEVARD (CR-951) AND THE SOUTH SIDE OF U.S. 41
(TAMIAMI TRAIL) EAST, IN SECTION 03, TOWNSHIP 51
SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA,
CONSISTING OF 82± ACRES; PROVIDING FOR THE REPEAL OF
ORDINANCE NUMBER 02-15, THE HENDERSON CREEK PUD;
AND BY PROVIDING AN EFFECTIVE DA TE.
WHEREAS, Wayne Arnold, AICP, of Q. Grady Minor and Associates, representing Gateway
Shoppes II, LLC, petitioned the Board of County Commissioners to change the zoning classification
of the herein described real property.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Collier
County, Florida, that:
SECTION ONE:
The zoning classification of the herein described real property located in Section 3, Township
51 South, Range 26 East, Collier County, Florida, is changed from "RSF-3" and "PUD" to "PUD"
Planned Unit Development in accordance with the Artesa Pointe PUD Document, attached hereto as
Exhibit "A", which is incorporated by reference herein and by reference made part hereof .. The
Official Zoning Atlas Map numbered 1603S, as described in Ordinance Number 91-102, and the
Collier County Land Development Code, is hereby amended accordingly.
SECTION TWO:
Ordinance Number 02-15, known as the Henderson Creek PUD, adopted on March 26,
2002, by the Board of County Commissioners of Collier County, is hereby repealed in its entirety.
SECTION THREE:
This Ordinance shall become effective upon filing with the Department of State.
-I-
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Packet Pg. 2207 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County,
Florida, this~ day of :,O~OQr: , 2003.
~,,,-,m.~
~M.Student
Assistant County Attorney
UDZ-2003 -AR-3 860/RB/lo
BOARD OF COUNTY COMMISSIONERS
::L_L-IE-~-C-0-~-Y-,_F_L_O_D_A ___ '--
TOM HENNING, CHAIRMAN
'1-23.(B
Thli ordlnonee filed with the
~ory of ~~s OffMe
_doyof=--+--,--
0nd acknowledgemen~ that
fili~ received this --day
d-~-W)3 pt .............. ~~~~.bt.
J3y Dep\lTy Cler1t
-2-
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Packet Pg. 2208 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Artesa Pointe
A
PLANNED UNIT DEVELOPMENT
82± Acres Located in Section 3,
Township 51 South, Range 26 East,
Collier County, Florida
PREPARED FOR:
Gateway Shoppes II, LLC
PREPARED BY:
D. Wayne Arnold, AICP
Q. Grady Minor & Associates
3800 Via Del Rey
Bonita Springs, Florida 34134
And
Richard D. Yovanovich
Goodlette, Coleman & Johnson
4001 Tamiami Trail North, Suite 300
Naples, Fl 34103
EXHIBIT "A"
F:\PUD Documents\Anesa Pointe 9-03-03 .DOC 9/3/2003
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Packet Pg. 2209 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
TABLE OF CONTENTS
ST A TEMENT OF COMPLIANCE AND SHORT TI1LE
SECTION I
SECTION Il
SECTION III
SECTION IV
SECTIONV
SECTION VI
EXHIBIT A
EXHIBITB
LEGAL DESCRIPTION, PROPERTY OWNERSHIP, &
GENERAL DESCRIPTION
PROJECT DEVELOPMENT
RESIDENTIAL
COMMERCIAL
P;RESERVE/OPEN SPACE
GENERAL DEVELOPMENT COMMITMENTS
PUD MASTER PLAN
BERM/WALL CROSS-SECTION
F:\PUD Docurnents\Artesa Pointe 9-03-03.DOC 9/3/2003
11
PAGE
iii
1-1
2-1
3-1
4-1
5-1
6.1
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Packet Pg. 2210 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
iii
STATEMENT OF COMPLIANCE
The purpose of this Section is to express the intent of Gateway Shoppes, LLC, hereinafter referred
to as the Developer, to create a Planned Unit Development (PUD) on 82± acres of land located in
Section 3, Township 51 South, Range 26 East, Collier County, Florida. The name of this Planned
Unit Development shall be Artesa Pointe. The development of Artesa Pointe will be in compliance
with the planning goals and objectives of Collier County as set forth in the Growth Management
Plan (GMP). The development will be consistent with the growth policies and land development
regulations adopted pursuant to of the Growth Management Plan, Future Land Use Element
(FLUE) and other applicable regulations for the following reasons:
1. The subject property is located in the Henderson Creek Mixed-Use Subdistrict as identified
on the Future Land Use Map. The Subdistrict provides for a maximum of 360 residential
dwellings and 325,000 square feet of commercial development. A minimum of 200
dwelling units shall be developed as affordable housing units.
2. The proposed residential density of the Artesa Pointe PUD is 5.96 dwelling units per acre
based on approximately 4 7 acres of non-commercial area, and approximately 8.5 dwelling
units/acre based on 33± acres of residential uses, and is consistent with the maximum
density permitted by the FLUE Density Rating System and is therefore consistent with
FLUE, Policy 5.1. The entire property qualifies for a base density of three (3) units per acre.
Through the affordable housing density bonus provisions of the GMP, eight (8) dwelling
units per acre may be added to the base density.
Base density
Traffic congestion area
Affordable housing density bonus
Total eligible density
Maximum permitted density
Requested density
4 dwelling units/acre
-1 dwelling unit/acre
5.5 dwelling units/acre
8.5 dwelling units/acre (280 units)
11 dwelling units/acre
5.96 dwelling units/acre= 280 units
The maximum amount of permitted commercial space shall be 325,000 square feet of gross
leasable area.
3. Improvements are planned to be in compliance with the applicable land development
regulations as set forth in Objective 3 of the FLUE.
4. The development of the Artesa Pointe PUD will result in an efficient and economical
extension of community facilities and services as required in Policy 3.1. of the FLUE.
5. The Artesa Pointe PUD is a master planned mixed-use community and is planned to
encourage ingenuity, innovation and imagination as set forth in the Land Development
Code (LDC), Planned Unit Development District.
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Packet Pg. 2211 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
iv
6. The Artesa Pointe PUD is planned to incorporate natural systems for water management in
accordance with their natural functions and capabilities as may be required by Objective 1.5
of the Drainage Sub-Element of the Public Facilities Element of the GMP.
7. All final local development orders for this project are subject to the Collier County
Adequate Public Facilities Ordinance , Division 3.15 of the LDC.
8. The Artesa Pointe PUD is consistent with the Henderson Creek Mixed Use Subdistrict of
the FLUE.
F:\PU D Doc urnents\A rt esa Po inte 9-03-03 .DOC 9/3/2003
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Packet Pg. 2212 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
V
SHORT TITLE
This Ordinance shall be known and cited as the "ARTESA POINTE PLANNED UNIT
DEVELOPMENT ORDINANCE".
F:\PUD Documents\Artesa Pointe 9-03-03.DOC 9/3/2003
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Packet Pg. 2213 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
1-1
SECTION I
LEGAL DESCRIPTION, PROPERTY OWNERSHIP, AND GENERAL DESCRIPTION
1.1 PURPOSE
The purpose of this Section is to set forth the legal description and ownership of the Artesa
Pointe PUD, and to describe the existing conditions of the property proposed to be
developed.
1.2 LEGAL DESCRIPTION
A parcel of land located in Section 3, Township 51 South, Range 26 East, Collier County,
Florida being more particularly described as follows:
Commence at the East quarter comer of Section 3, Township 51 South, Range 26 East,
Collier County, Florida; thence run south 00°41 '50" west, along the east line of the
southeast quarter of said Section 3, for a distance of 1,361.72 feet to a point on the southerly
right-of-way line of U.S. 41 (State Road 90) (200 foot right-of-way); thence run north
54°20' 16" west, along said southerly right-of-way line, for a distance of 966.32 feet to a
point on the westerly line of a 100 foot wide drainage easement a recorded in Official
Records Book 76 at Pages 127 through 129, of the Public Records of Collier County,
Florida; the same being the point of beginning; thence run South 20°16' 12" west, along
said westerly line, for a distance of 203. 10 feet to the beginning of a tangential circular
curve concave northwesterly; thence run southwesterly along said westerly line and the arc
of said curve to the right, having a radius of 2,799.93 feet; through a central angle of
09°43'48"; subtended by a chord of 474.91 feet at a bearing of south 25°08'06" west, for an
arc length of 475.48 feet to the end of said curve; the same being a point on the north line of
the south half of the south half of said Section 3; thence run north 89°26' 59" west, along
said north line for, a distance of 2,833.22 feet to a point on the easterly right-of-way line of
Isle of Capri Road ( State Road 951) (right-of-way varies); thence run north 02°28'03" east,
along said easterly line, for a distance of 1,284.83 feet; thence, leaving said right-of-way
line, run the following four ( 4) courses along the lines of the property described in Official
Records Book 2529 at Pages 1377 and 1378 north 90°00'00" east for a distance of 100.09
feet; thence run north 02°28'03" east for a distance of 136.68 feet; thence run north
04°09'46" east for a distance of 163.91 feet; thence run south 89°55'57" east for a distance
of 867 .08 feet to a point that is a distance of 400.00 feet southerly of and parallel with the
aforementioned southerly right-of-way line of U.S. 41 (State Road 90) (200 foot right-of-
way); thence run south 54 °20' 16" east for a distance of 1,654.49 feet; thence run north
35°39' 44" east for a distance of 400.00 feet to a point on the said southerly right-of-way
line of U.S. 41; thence run south 54 °20' 16" east, along said line, for a distance of 600.00
feet to the point of beginning, containing 81.886 acres, more or less.
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Packet Pg. 2214 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
1-2
Together with a non-exclusive ingress/egress easement over Parcel "A-1" as it is described
in Agreement for Non-exclusive Ingress/egress Easement recorded in Official Records
Book 2529, Page 1389, of the Public Records of Collier County, Florida
1.3 GENERAL DESCRIPTION OF PROPERTY
A. Toe project site is located in Section 3, Township 51 South, Range 26 East. The site
is generally bordered on the west by S.R. 951 and the Eagle Creek PUD District; on
the north by undeveloped C-4 and A zoned property; on the east by Henderson
Creek; and on the south by the Holiday Manor Mobile Home Park, zoned MH.
B. The zoning classification of the subject property at the time of PUD application is
RSF-3 and PUD.
C. Elevations within the site are approximately 3 .5 feet to 4.5 feet above MSL. Per
FEMA Firm Map Panel No. 120067 605 E and 615 E, dated August 3, 1992, the
Artesa Pointe PUD is located within AE 7 of the FEMA flood insurance rate map.
D. Approximately 33% of the site is abandoned agricultural field. The remainder is
naturally forested with pine flatwoods and pine-cypress-cabbage palm.
E. The soil types on the site generally include 02 -Holopaw fine sand, limestone
substratum, 10 -0 ldsmar fine sand, limestone substratum, 11 -Hallendale fine
sand, 14 -Pineda fine sand, limestone substratum, 20 -Ft. Drum and Malabar, high
fine sands, 27 -Holopaw fine sand, and 32 -Urban land as defined by the NRCS.
F. The project site is located within the Collier County Water Management District
Henderson Creek Watershed.
1.4 PERMITTED VARIATIONS OF DWELLING UNIT TYPES.
A maximum of 280 dwelling units are permitted within the Artesa Pointe PUD. This
maximum may include a mix of single-family, two-family, duplex, zero lot line, patio,
townhome and multi-family dwelling unit types.
1.5 DENSITY
A. The acreage of the residential and open space portions of the PUD are
approximately 4 7± acres and the number of dwelling units authorized to be built
pursuant to this PUD is a maximum of 280 units through use of the affordable
housing density bonus as set forth in the Density Rating System of the FLUE of the
GMP. The gross project density, shall be a maximum of 5.96 units per acre.
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Packet Pg. 2215 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
1-3
B. At all times, all property included within the Artesa Pointe PUD as residential or
open space shall be included in determining project density, including lands to be
reserved for road right-of-way as part of the PUD rezoning process.
F:\PUD Documents\Artesa Pointe 9-03-03 .00C 9/3/2003
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Packet Pg. 2216 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
2.1 PURPOSE
SECTION II
PROJECT DEVELOPMENT
2-l
The purpose of this Section is to generally describe the plan of development for the Artesa
Pointe PUD, and to identify relationships to applicable County ordinances, policies, and
procedures.
2.2 GENERAL DESCRIPTION OF PROJECT PLAN AND PROPOSED LAND USES
A. The Artesa Pointe PUD will be developed as a mixed-use community which may
feature a full array of commercial uses, residential dwelling types, and a recreation
center, providing for activities such as community gatherings, recreational
amenities, and personal services, central to community residents.
B. The Conceptual Master Plan is illustrated graphically as Exhibit "A". A Land Use
Summary indicating approximate land use acreages is shown on the plan. The
Master Plan is conceptual, and the location, size, and configuration of the individual
recreational area, water management features, and development tracts shall be
determined at the time of final site development plan and/or preliminary subdivision
plat approval with minor adjustments at the time of final plat approval, m
accordance with Subsection 3 .2. 7 .2 and more particular Section 3 .3 of the LDC.
C. The Artesa Pointe PUD is compatible with and complementary to existing and
future surrounding land uses as required in Policy 5.4 of the FLUE and the
Henderson Creek Mixed Use Subdistrict of the FLUE.
2.3 COMPLIANCE WITH COUNTY ORDINANCES
A. Regulations for development of the Artesa Pointe PUD shall be in accordance with
the contents of this PUD Ordinance and applicable sections of the LDC (to the
extent they are not inconsistent with this PUD Ordinance) and the Growth
Management Plan which are in effect at the time of issuance of any development
orders to which said regulations relate which authorize the construction of
improvements, such as but not limited to, final subdivision plat, final site
development plan, excavation permit and preliminary work authorization. Where
this PUD Ordinance does not provide developmental standards, then the provisions
of the specific section of the LDC that is otherwise applicable shall apply. Where
specific standards are specified in this PUD, these standards 'shall prevail over those _
in the LDC.
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B. Unless otherwise defined herein, or as necessarily implied by context,· the
definitions of all terms shall be the same as the definitions set forth in the LDC in
effect at the time of development order application.
C. Development permitted by the approval of this PUD shall be subject to the
Adequate Public Facilities Ordinance, Division 3.15 of the LDC.
D. Unless modified, waived or excepted by this PUD, or by subsequent request, the
provisions of all other sections of the LDC remain in effect with respect to the
development of the land which comprises this PUD.
E. All conditions imposed herein or as represented on the Artesa Pointe Master Plan
are part of the regulations which govern the manner in which the land may be
developed.
F. The Subdivisions Division of the LDC (Article 3, Division 3.2) shall apply to the
Artesa Pointe PUD, except where an exemption or substitution is set forth herein or
othetwise granted pursuant to the Land Development Code, Section 3.2 .4 .
G . The Site Development Plans Division of the LDC (Article 3, Division 3.3) shall
apply to the Artesa Pointe PUD, except where an exemption is set forth herein or
otherwise granted pursuant to the Land Development Code, Section 3 .3 .4.
H. Recognizing that the plans for development of tracts have not been designated with
a specific dwelling unit type, the type of dwelling unit which characterizes the initial
development of any platted tract shall be carried out throughout the development of
that entire tract.
2.4 ROADWAYS
Roadways within the Artesa Pointe PUD may be privately owned and maintained.
Standards for roads shall be in compliance with the applicable provisions of the LDC
regulating subdivisions, unless otherwise modified, waived or excepted by this PUD or
approved during preliminary subdivision plat approval. The Developer reserves the right to
request substitutions to Code design standards in accordance with Subsection 3.2.7.2 of the
LDC. The Developer retains the right to establish gates, guardhouses, and other access
controls as may be deemed appropriate by the Developer on all internal and privately owned
and maintained project roadways. The primary access road, loop road connecting U.S. 41
with S.R. 951, shall not be gated, and shall remain open to the public.
2.5 LAKE SETBACK AND EXCAVATION
The lake setback requirements described in Subsection 3 .5 . 7. I of the LDC may be reduced
with the administrative approval of the Collier County Planning Services Director. All
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lakes greater than two (2) acres may be excavated to the maximwn commercial excavation
depths set forth in Subsection 3 .5. 7.3 .1. and subject to permit approval of the South Florida
Water Management District. Removal of fill and rock from the Artesa Pointe PUD shall be
administratively permitted to an amount up to 10 percent per lake (20,000 cubic yards
maximum), unless a commercial excavation permit is issued.
2.6 USE OF RIGHTS-OF-WAY
Utilization of lands within all project rights-of-way for landscaping, decorative
entranceways, and signage shall be allowed subject to review and administrative approval
by the Collier County Engineering Director for engineering and safety considerations during
the development review process and prior to any installations.
2.7 CHANGES AND AMENDMENTS TO PUD DOCUMENT OR PUD MASTER
PLAN
Changes and amendments may be made to this PUD Ordinance, PUD Master Plan as
provided in Subsection 2.7.3.5 of the LDC. Minor changes and refinements as described
herein may be made by the Developer in connection with any type of development or pennit
application required by the LDC.
2.8 COMMON AREA MAINTENANCE
Common area maintenance shall be provided by a property owners' association. The
Developer shall create a property owners' association or associations, whose functions shall
include provision for the perpetual maintenance of common facilities and open spaces. The
property owners' association, shall be responsible for the operation, maintenance, and
management of the surface water and stormwater management systems and reserves serving
the Artesa Pointe, in accordance with the provisions of Collier County Ordinance 90-48 and
Resolution 90-292, together with any applicable permits from the South Florida Water
Management District.
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2.9 LANDSCAPE BUFFERS, BERMS, FENCES AND WALLS
Landscape buffers, berms, fences and walls are generally permitted as a principal use
throughout the Artesa Pointe PUD. Landscape buffers shall be provided consistent with the
minimum criteria for mixed-use activity centers, and as required by the Henderson Creek
Mixed-use Subdistrict. The following standards shall apply:
A. Landscape berms shall have the following maximum side slopes:
1. Grassed berms 4: 1
2. Ground covered berms
Perimeter 3: 1
Internal to project 3:1
3. Structural walled berms -vertical
B. Fence or wall maximwn height: Six feet (6'), as measured from the finished floor
elevation of the nearest residential structure within the development. If the fence or
wall is constructed on a landscaped berm, the wall shall not exceed six feet ( 6') in
height from the top of berm elevation, except as noted in Section 2.9.G of this PUD
Document. All fences shall be subject to the design standards of Section 2.6.11 of
the LDC.
C. Landscape buffers, berms, fences and walls may be constructed along the perimeter
of the Artesa Pointe PUD boundary with County Staff approval at the time of
preliminary subdivision plat, site development plan, or site improvement plan
approval.
D. Fences and walls which are an integral part of security and access control structures,
such as gatehouses and control gates, shall be subject to the height limitations for
principal residential structures.
E. Pedestrian sidewalks and/or bike paths may be allowed in landscape buffers. Where
such structures or features are located in the required landscape buffer, the landscape
buffer shall be increased in width equal to the encroachment in that location.
F. Landscape berms located within the Artesa Pointe PUD boundary and contiguous to
a property line and/or right-of-way line may be constructed such that the toe of slope
is set back a minimum 5 feet from the property line and/or right-of-way line. The
berm and wall identified in Section 2.9.G of this PUD shall be designed in
compliance with Exhibit "B" of the PUD.
G. Concurrent with development of each tract, a minimum 6 foot high precast concrete
( or similar material) wall shall be constructed within the buffer along the southern
property boundary adjacent the residential tract and an 8 foot high precast concrete
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wall ( or similar material) shall be constructed within the buffer, adjacent" the
commercial tract( s ). The walls must be constructed on a minimum 3 foot high
berm). Within the Preserve Area, a chain link (or similar material) fence shall be
constructed parallel to the southern property line.
2.10 FILL STORAGE
Fill storage is generally permitted as a principal use throughout the Artesa Pointe PUD. Fill
material generated from other properties owned or leased by the Developer may be
transported and stockpiled within areas which have been disturbed/farmed. Prior to
stockpiling in these locations, the Developer shall receive approval by the County
Community Development and Environmental Services Administrator. The following
standards shall apply:
A. Stockpile maximum · side slope 2:1, if protected by a six foot (6') high fence;
otherwise, a 4: 1 side slope shall be required.
B. Stockpile maximum height: Twenty feet (20)'. No stockpile shall remain for a
period longer than one year.
C. Soil erosion control shall be provided in accordance with LDC, Division 3.7.
2.11 DESIGN GUIDELINES AND STANDARDS
The Collier County Planned Unit Development District is intended to encourage ingenuity,
innovation and imagination in the planning, design and development or redevelopment of
relatively large tracts of land under unified ownership or control, as set forth in the LDC,
Section 2.2.20.1. Both commercial and residential development shall be designed in
compatible architectural styles and the project shall contain similar landscaping, buffers,
and signage.
2.12 PRELIMINARY SUBDIVISION PLAT PHASING
Submission, review, and approval of preliminary subdivision plats for the project may be
accomplished in phases to correspond with the planned development of the property.
2.13 GENERAL PERMITTED USES
Certain uses shall be considered general permitted uses throughout the Artesa Pointe PUD
except in the Preserve/Open Space Area. General permitted uses are those uses which
generally serve the Developer and residents of the Artesa Pointe PUD and are typically part
of the common infrastructure or are considered community facilities. ·
A. General Permitted Uses:
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1. Essential services as set forth under LDC, Subsection 2.6.9.1.
2. Water management facilities and related structures.
3. Lakes including lakes with bulkheads or other architectural or structural
bank treatments.
4. Guardhouses, gatehouses, and access control structures.
5. Community and neighborhood parks, recreational facilities.
6. Temporary construction, sales, and administrative offices for the Developer
and Developer's authorized contractors and consultants, including necessary
access ways, parking areas and related uses.
7. Landscape features including, but not limited to, landscape buffers, berms,
fences and walls subject to the standards set forth in Section 2.9 of this
PUD.
8. Fill storage subject to the standards set forth in Section 2.10 of this PUD.
B. Development Standards:
Unless otherwise set forth in this Document, or as noted in Table 1, the following
development standards shall apply to structures:
1. Setback from back of curb or edge of pavement of any road -Twelve feet
( 12') except for guardhouses, gatehouses, and access control structures
which shall have no required setback.
2. Setback from PUD boundary: See Table 1, Development Standards and
Subsection 4.5.A.4 of this PUD.
3. Minimum distance between unrelated structures -Ten feet ( 1 O').
4. Maximum height of structures -See Table 1, Development Standards and
Section 4.5.C of this PUD.
5. Minimum floor area -None required.
6. Minimwn lot or parcel area -None required.
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7. Standards for parking, landscaping, signs and other land uses where such
standards are not specified herein are to be in accordance with the
appropriate sections of the LDC in effect at the time of site development
plan approval.
2.14 OPEN SPACE REQUIREMENTS
The Collier County LDC requires that mixed-use projects maintain open space at a
minimum of 30% of the project area. The PUD Master Plan identifies preserves, lakes,
recreation tracts and buffers as open spaces. These areas, in conjunction with open space
areas included within the Residential District, will satisfy the 30% open space requirement
of Section 2.6.32 of the LDC for mixed-use developments.
2.15 NATIVE VEGETATION RETENTION REQUIREMENTS
Pursuant to Policy 6.4.6 of the Conservation and Coastal Management Element of the
Growth Management Plan, a minimum of 25% of the viable naturally functioning native
vegetation on site shall be retained, which is 13.755 acres.
2.16 SIGNAGE
All signs will be in accordance with Division 2.5 of the LDC in effect at time of their
permitting, unless otherwise specified herein within the Artesa Pointe PUD.
A. Exception from Subsection 2.5.5.1.6 On-Premises Signs within Residential
District.
In addition to other permitted residential signs in Section 2.5 of the LDC, one pole
or monument directory sign which identifies the name of the commercial
component of the PUD and individual tenant(s) within the commercial component
as well as the residential development may be located at the project entrance on
U.S. 41 East. The sign shall not exceed a maximum of 150 square feet in sign
copy area and shall not exceed 15 feet in height. The minimum setback from U.S.
41 shall be 15 feet.
2.17 SIDEWALKS/BIKEPATHS
A. Pursuant to LDC Subsection 3.2.8.3.17 and Section 2.9 of the Artesa Pointe PUD,
sidewalks/bikepaths shall be permitted as follows:
1. An internal pedestrian walkway system is permitted within drainage
easements.
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2. Sidewalks may be located outside platted rights-of-way, when located
within a separate sidewalk easement.
3. Sidewalks may be located within landscape buffers and/or easements;
however, the landscape buffer shall be increased in width by an amount
equal to the encroachment, at the point of encroachment.
2.18 SUBSTITUTIONS TO SUBDIVISION DESIGN STANDARDS
A. The Developer reserves the right to request substitutions to subdivision
improvement and utility design standards in accordance with Subsection 3.2.7.2
of the LDC.
B. The proposed primary entry road shall be designed and constructed in accordance
with Section 3.2.8 of the LDC. Other roadways within Artesa Pointe shall be
designed and constructed in accordance with Section 3 .2.8 of the LDC with the
following substitutions:
C. Streets and access improvements
1. LDC Subsection 3.2.8.4.16.5, Street Right-of-Way Width
Street right-of-way width: The minimum right-of-way width to be utilized
for local streets and cul-de-sacs shall be forty ( 40) feet. Two-way drive
aisles serving multi-family tracts or commercial tracts shall be a minimum
of twenty-four (24) feet. Minimum right-of-way width for the loop road
shall be sixty (60) feet.
2. LDC Subsection 3.2.8.4.16.6, Dead-end Streets
Cul-de-sacs may exceed a length of one thousand (1,000) feet.
3. LDC Subsection 3.2.8.4.16.8, Intersection Radii
Intersection radii: Street intersections shall be provided with a minimum of
a twenty (20) foot radius (face of curb) for all internal project streets and a
thirty-five (35) foot radius for intersections at project entrances.
4. LDC Subsection 3.2.8.4.16.10, Reverse Curves
Reverse Curves: Tangents shall not be required between reverse curves on
any project streets.
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5.
G
LDC Subsection 3.2.8.3.17, Sidewalks, bike lanes and bike paths
A sidewalk six ( 6) feet in width or an eight (8) foot wide multimodal
pathway shall be provided on one side of the loop road connecting U.S. 41
and S.R. 951.
LDC Subsection 3 .2.8.3 .17
1
$,' di_e,UO-l lt.s I b ,' Lt /MtL, > Ct.+io b. "L, fk.llh S
A sidewalk five (5) feet in width shall be provided on one side only of local streets.
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3.1 PURPOSE
SECTION III
RESIDENTIAL
"R"
3-1
The purpose of this Section is to identify permitted uses and development standards for
areas within the Artesa Pointe PUD designated on the Master Plan as "R", Residential.
3.2 MAXIMUM DWELLING UNITS
A maximum of two hundred and eighty (280) residential dwellings may be constructed
within the areas designated "R" on the Conceptual Master Plan. A minimum of two
hundred (200) dwelling units shall qualify as affordable housing under Collier County
guidelines for affordable housing, and subject to the approved companion Collier County
Affordable Housing Density Bonus Agreement.
3.3 GENERAL DESCRIPTION
Areas designated as "R," Residential on the Master Plan are designed to accommodate a full
range of residential dwelling types and general permitted uses as described by Section 2.13
of this PUD Document, a full range of recreational facilities, essential services, and
customary accessory uses.
The approximate acreage of the area designated for residential development is indicated on
the PUD Master Plan. This acreage is based on conceptual designs and is approximate.
Actual acreages of all development tracts will be provided at the time of site development
plan or preliminary subdivision plat approvals in accordance with Division 3.3, and
Division 3.2, respectively, of the LDC. Residential tracts are designed to accommodate
internal roadways, open spaces, and other similar uses found in residential areas.
3.4 PERMITTED USES AND STRUCTURES
All residential dwellings shall be offered as for-sale product. No building or structure, or
part thereof, shall be erected, altered or used, or land used, in whole or part, for other than
the following:
A. Principal Uses:
1. Single family attached, and townhomes (no building structure for single
family attached or townhomes shall contain more than.4 dwelling units).
2. Single family and zero lot line dwellings.
3. Two-family and duplex dwellings.
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4. Multi-family dwellings including coach homes and garden apartments (no
building structure shall contain more than 4 dwelling units).
5. Model homes and model home centers (subject to Section 2.6.33 of the
LDC) Offices for project administration, construction, sales and marketing.
6. Recreational facilities such as parks, playgrounds, and pedestrian/bikeways
B. Accessory Uses and Structures:
1. Accessory uses and structures customarily associated with the principal uses
permitted in this subdistrict, including swimming pools, spas and screen
enclosures, recreational facilities designed to serve the development, and
essential services.
2. Any other accessory use, which is comparable in nature with the foregoing
list of uses, as determined by the Board of Zoning Appeals (BZA).
3.5 DEVELOPMENT STANDARDS
A. Table I sets forth the development standards for land uses within the Artesa Pointe
PUD residential area.
B. Site development standards for single family, zero lot line, patio home, two-family,
duplex, single family attached and town home uses apply to individual residential
lot boundaries. Multi-family standards apply to parcel boundaries.
C. Standards for parking, landscaping, signs and other land uses where such standards
are not specified herein, are to be in accordance with the LDC in effect at the time of
site development plan approval. Unless otherwise indicated, required yard, height,
and floor area standards apply to principal structures.
D. Development standards for uses not specifically set forth in Table I shall be in
accordance with those standards of the zoning district which permits development
that is most similar to the proposed use.
E. During the platting process, the Developer shall identify the specific housing type
intended for each platted tract.
F. Single-family attached dwellings shall be permitted to have individual driveways on
private roadways.
G. All residential development shall comply with the minimum landscape standards
required in Section 2.4 of the LDC.
H. All dwelling units shall be required to have a minimwn of a single-car garage.
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DEVELOPMENT
STANDARDS
PRINClP AL STRUCTURES
MINIMUM LOT AREA
MINIMUM LOT WIDTH
MIN . FLOOR AREA
FRONT Y ARD 10•11
SIDE YARD
REAR YARD
PRESERVE SETBACK9
PRINClPAL STRUCTURE
ACCESSORY STRUCTURE
MIN . DIST.
BETWEEN STRUCTURES
MAX. BLDG. HT.
ACCESSORY STRUCTURES
FRONT
SIDE
REAR (ATTACHED)
(DETACHED)
PRESERVE SETBACK
MAX . BLDG. HT.
1 Applicable to single story dwelling units .
2 Applicable to two story dwelling units .
3-3
TABLE 1
DEVELOPMENT STANDARDS FOR
"R" RESIDENTIAL AREA
SINGLE-ZERO MULTI-CLUBHOUSE/
FAMILY LOT LINE FAMILY\ RECREATION
ATTACHED PATIO\VILLA BUILDINGS BUILDINGS
2,250 S.F. 2,250 S.F. 1 ACRE NIA
25 FEET 40 FEET 150 FEET NIA
1,000 S.F. 1,000 S.F. 450 S.F. NIA
20 FEET 20 FEET 20 FEET NIA
5 FEET 1· 7 0 FEET or 15 FEET NIA
7.5 FEET2· 7 5 FEET3· 7 or½BH
15 FEET 15 FEET 15 FEET NIA
25 FEET 25 FEET 25 FEET 25 FEET
10 FEET 10 FEET 10 FEET 10 FEET
10 FEET 10 FEET 15 FEET' NIA
15 FEET2
35 FEET5·
6 35 FEET 5
·
6 35 FEET5 NIA
S.P.S. S.P.S . S.P.S. 20 FEET
S .P .S.7-8 S.P .S.7· 8 S.P.S.7
·
8 0 , OR5 , OR
7 .5 FEET2·8
5 FEET8 5 FEET8 10 FEET8 5 FEET 8
5 FEET8 5 FEET8 20 FEET8 5 FEET8
10 FEET 10 FEET 10 FEET 10 FEET
35 FEET 5•6 35 FEET5·6 35 FEET5•6 35 FEET5
•
6
3 Zero foot (O') minimum side yard setback on either or both sides, provided a minimum 10 foot separation between principal structures is maintained.
4 15 feet, or one half of the sum of the heights of adjacent buildings, measured from the exterior walls, whichever is greater.
5 Building height shall be measured from the first finished floor elevation.
6 Maximum height is 2 stories, not to exceed 35 feet, above the minimum finished floor elevation, except for attached screen enclosures, which may be
the height of the principal structure. .
7Where fee simple lots are created as single family attached housing units, no side yard shall be required between interior units of a unified principal
structure, and the required side yard shall be measured from the exterior wall(s) of the principal structure.
• Where adjacent to a lake, 0 feet from the lake maintenance easement. No structures are permitted in the required, 20 foot lake maintenance easement
(See Appendix "A", Typical Cross Sections, and Exhibit A, PUD Master Plan).
9 For purposes of this PUD, attached roofed screen enclosures or lanais shall be considered accessory structures.
10 Building setback shall be measured from back of curb for private streets; however, a minimum of 23 feet from edge of sidewalk to the garage must be
provided, or 23 feet from edge of pavement where no sidewalk is provided.
11 For lots abutting the project's loop road and which have access from another private road, a minimum building setback of 15 feet from the loop road
right-of-way shall be required . A landscape buffer or fence shall be required between the structure and the right-of-way.
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Note: The location of structures proposed adjacent to a lake may have no setback from the lake
maintenance easement. No structures are permitted in the required, 20 foot lake maintenance
easement, except as provided for in Section 2.5 of this PUD Document.
S.P .S.: Same as Principal Structures.
BH: Building Height.
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4.1 PURPOSE:
SECTION IV
COMMERCIAL
"C"
4-1
The purpose of this Section is to identify the pennitted commercial land uses and
related development standards for areas within the Artesa Pointe PUD designated
"C", Commercial on the Conceptual Master Plan, Exhibit A.
4.2 MAXIMUM COMMERCIAL SQUARE FOOTAGE
A maximum of 325,000 square feet of gross leasable commercial space is pennitted
within the Artesa Pointe PUD. A maximum of four out-parcels are allowed, all of
which shall abut Collier Boulevard. All out-parcels shall provide internal vehicular
access. All out-parcels are limited to non-regional commercial uses. No out-parcel
shall exceed five acres.
4.3 GENERAL DESCRIPTION
Areas designated as "C", Commercial on the Master Concept Plan, Exhibit "A", are
designed to implement the provisions of the Henderson Creek Mixed Use Sub-
district outlined in the FLUE of the Collier County Growth Management Plan. The
focus of this Subdistrict is to provide regional commercial uses with limited
neighborhood commercial uses.
For the purposes of this PUD, the tenn "regional commercial uses" is defined as:
Retail uses typically dominated by large anchors, including discount department
stores, discount super stores, off-price stores, warehouse clubs, and home
improvement centers. Regional retail uses typically utilize square footages ranging
from 20,000 square feet to over I 00,000 square feet.
4.4 PERMITTED USES
A. Principal Uses (non-regional):
1. Accounting, auditing and bookkeeping services (8721)
2. Apparel and accessory stores (5611-5699)
3. Building materials, hardware, and garden supply (5231-5261)
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4. Business services (7311, 7313, 7322-7338, 7361, 7371, 7372, 7374-7376,
7379, 7384)
5. Depository institutions ( 6011-6099)
6. Eating places (5812)
7. Engineering, architectural and surveying (8711-8713)
8. Food stores (5411, excluding grocery stores and supermarkets -5499, with
accessory gasoline pwnps and car wash)
9. General merchandise stores (5311-5399), including discount retail, and
discount superstore with grocery, auto tire and lubricating, and phannacy
component.
10. Health services (8011-8049)
11. Home furniture, furnishing and equipment stores (5712-5736)
12. Insurance carriers, agents and brokers ( 6311-63 99, 6411)
13 . Libraries (8231)
14. Legal services (8111)
15. Management and public relations services (8741-8743)
16. Miscellaneous retail (5912, 5921, 5941-5961, 5992, 5995, and 5999 -
excluding auction room, tombstone sales, and swimming pool sales.)
17. Non-depository credit institutions ( 6141-6163)
18. Real estate (6512, 6520-6552)
19 . Stationery and office supplies, retail ( 5112)
20. Motion pictures (7832, 7841)
B. Principal Uses (regional):
1. Apparel and accessory stores (5611-5699)
2. Building materials, hardware, and garden supply (5231-5261)
3. General merchandise stores (5311-5399), including discount retail, and
discount superstore with grocery, auto tire and lubricating, and pharmacy
component.
4. Home furniture, furnishing and equipment stores (5712-5736)
5. Libraries(8231)
6. Miscellaneous retail (5912, 5921, 5941-5961, 5992, 5995, and 5999 -
excluding auction room, tombstone sales, and swimming pool sales.)
7. Stationery and office supplies, retail (5112)
8. Motion pictures (7832, 7841)
9. Discount warehouse clubs, which includes stores where shoppers pay a
membership fee in order to take advantage of discounted prices on a wide
variety of items such as food, clothing, tires and appliances.
10. Home improvement superstore/center, which includes warehouse-type_ retail
facilities specializing in the sale of home improvement merchandise,
including lumber, tools, paint, lighting, wall paper and paneling, kitchen and
bathroom fixtures, lawn equipment, and garden plants and accessories. No
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Packet Pg. 2231 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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outdoor storage of building materials or on-site assembly of building
components is permitted.
C. Accessory Uses:
1. Uses and structures that are customarily incidental and subordinate to the
above permitted uses.
2. Automatic car washes and fuel pumps in conjunction with a convenience
food store.
4.5 DEVELOPMENT STANDARDS
A. Yard Requirements
1. Front:
2. Side:
3. Rear:
4. From PUD Boundary:
5. From Internal Roadway:
6. Preserve:
Principal:
Accessory:
B. Minimum Lot Size
Twenty-five feet (25 ')
Fifteen feet (15 ')
Fifteen feet (15')
Twenty-five feet (25 ')
Ten feet (1 O')
Twenty-five feet (25')
Ten feet (10)
1. Minimum lot width: One hundred feet (100')
2. Minimum area: Twenty thousand (20,000) square feet
C. Building Height
Buildings shall be limited to one-story, not to exceed a maximum of thirty-five (35')
feet in height except that architectural entry features may exceed thirty-five (35')
feet in height, mezzanines shall not constitute a second story. Building height shall
be applied in accordance with the LDC.
D. Floor Area Requirements
At least one of the regional commercial uses (as set forth in this Subsection) shall
contain a minimum of I 00,000 square feet of gross leasable area. Non-regional
commercial uses shall not exceed a total 32,500 square feet of gross leasable area,
and the remaining regional commercial use (beyond the one required at minimum of
I 00,000 square feet) must occupy a minimum of 20,000 square feet of gross
leasable floor area, as required by the Subdistrict. Those integral components of
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Packet Pg. 2232 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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regional retail uses and discount super stores such as gasoline sales and auto service,
grocery sales, phannacies, and the like shall not be considered non-regional retail
uses for purposes of the overall non-regional retail square footage limitation. For
purposes of this PUD, gross leasable area shall include only that portion of a
building under a roof and enclosed by walls.
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Packet Pg. 2233 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
5.1 PURPOSE
SECTIONV
PRESERVE/OPEN SPACE AREA
"PIO"
5-1
The purpose of this Section is to identify permitted uses and development standards for the
area within the Artesa Pointe PUD designated on the Master Plan as "PO", Preserve/Open
Space.
5.2 GENERAL DESCRIPTION
Areas designated as "PO", Preserve/Open Space on the Master Plan are designed to
accommodate conservation, passive recreation and water management uses and functions.
The acreage of the Preserve/Open Space area is indicated on the Master Plan.
5.3 PERMITTED USES AND STRUCTURES
No building or structure, or part thereof, shall be erected, altered or used, or land or water
used, in whole or in part, for other than the following:
A. Permitted Principal Uses and Structures
I. Boardwalks, nature trails and shelters.
2. Water management structures.
3. Any other conservation and related open space activity or use, which is
comparable in nature with the foregoing list of uses, as determined by the
Board of Zoning Appeals (BZA).
5.4 DEVELOPMENT STANDARDS
A. Maximwn height of structures: Twenty-five (25) feet.
5.5 LANDSCAPE BUFFERS
A. Where Section 2.4 of the LDC requires landscape buffers, and Preserve/Open
Space areas are shown, landscape buffers may consist of preserve vegetation,
where it is demonstrated that the landscape feature meets or exceeds requirements
of Section 2.4 of the LDC.
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Packet Pg. 2234 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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SECTION VI
GENERAL DEVELOPMENT COMMITMENTS
6.1 PURPOSE
The purpose of this Section is to set forth the development commitments for the
Artesa Pointe PUD.
6.2 PUD MASTER DEVELOPMENT PLAN
A. All facilities shall be constructed in accordance with final site development plans,
final subdivision plats and all applicable state and local laws, codes and
regulations in effect at the time of approval of the development order to which
such regulations apply except where specifically noted.
B. The PUD Master Plan (Exhibit A) is an illustration of the conceptual development
plan. Tracts and boundaries shown on the Plan are conceptual and shall not be
considered final. Actual tract boundaries shall be determined at the time of
preliminary subdivision plat or site development plan approval.
C. All necessary easements, dedications, or other instruments shall be granted to
insure the continued operation and maintenance of all utilities.
6.3 ENGINEERING
A. Except as noted herein, all project development will occur consistent with
Division 3.2 and 3.3 respectively, of the LDC.
6.4 UTILITIES
A. Water distribution, sewage collection and transmission systems shall be
constructed throughout the project by the Developer. Potable water and sanitary
sewer facilities constructed within platted rights-of-way or within dedicated
County utility easements shall be conveyed to Collier County, pursuant to Collier
County Ordinance 01-57, as may be amended, except as may be provided in
Section 2 .4 of this Document.
B. Upon completion of the utility facilities, they shall be tested to insure they meet
Collier County utility construction requirements in effect at the time construction
plans are approved.
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Packet Pg. 2235 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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C. All customers connecting to the potable water and sanitary sewer system shall be
customers of the County.
6.5 WATERMANAGEMENT
A. A SFWMD surf ace water management permit shall be obtained prior to
commencement of site work.
B. An excavation permit will be required for the proposed lakes in accordance with
Division 3 .5 of the LDC. All lake dimensions will be approved at the time of
excavation permit approval.
C. The Artesa Pointe PUD conceptual surface water management system is described
in the Surface Water Management and Utilities Report, which has been included
in the PUD rezone application materials.
D. All development within the PUD may share common surface water management
facilities.
6.6 ENVIRONMENTAL
A. Buffers shall be provided around wetlands, extending at least 15 feet landward
from the edge of wetland preserves and averaging 25 feet from the landward edge
of wetland preserves. Where natural buffers are not possible, structural buffers
shall be provided in accordance with State of Florida Environmental Resource
Permit Rules and be subject to review and approval by Current Planning Section
Staff.
B. An exotic vegetation removal, monitoring and maintenance plan for the site, with
emphasis on the preserve/open space areas, shall be submitted to Environmental
Services Department for review and approval prior to final site plan/construction
plan approval.
C. All conservation areas shall be designated as conservation/preservation tracts or
easements on all construction plans and shall be recorded on the plat with
protective covenants per or similar to Section 704.06 of the Florida Statutes.
Conservation easements shall be dedicated on the plat to the project homeowners'
association, or like entity, for ownership and maintenance responsibility and to
Collier County with no responsibility for maintenance.
F :\PUD Documents\Artesa Pointe 9-03-03.DOC 9/16/2003
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Packet Pg. 2236 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
G
6.7 TRANSPORTATION
The development of this PUD will be subject to and governed by the following
conditions: /? ()IJ ~ t ~
A. All traffic control devices used just be in accordance with the Manual of
Uniform Traffic Control Devices as adopted by the Florida Department of
Transportation (FOOT), as ~ed, and as required by Florida Statutes -
Chapter 316, Uniform Traffic Control Law.
B. All traffic speed limit postings must be in accordance with the Speed Zoning
Manual), as amended, and as adopted by the FOOT, and as required by Florida
Statutes -Chapter 316, Uniform Traffic Control Law.
C. Arterial level street lighting shall be provided at all development points of ingress
and egress. Said lighting shall be in place prior to the issuance of the first
permanent certificate of occupancy.
D. External and internal improvements determined by Collier County Staff to be
essential to the safe ingress and egress to the development shall not be considered
for impact fee credits. All such improvements shall be in place prior to the
issuance of the first certificate of occupancy.
E. Road Impact Fees shall be paid in accordance with Collier County Ordinance O 1-
13, as amended.
F. Any and all points of ingress and/or egress as shown on any and all plan
submittal( s) are conceptual in nature and subject to change, as determined by
Collier County Staff. The County reserves the right to modify or close any ingress
and/or egress location(s) determined to have an adverse affect on the health, safety
and welfare of the public. These include, but are not limited to, safety concerns,
operational circulation issues, roadway capacity problems.
G. Any and all median opening locations must be in accordance with the Collier
County Access Management Policy, as amended, and LDC, as amended. Median
access and control will remain under the County's authority. The County reserves
the right to modify or close any median opening(s) determined to have an adverse
effect on the health, safety and welfare of the public. These include, but are not
limited to, safety concerns, operational circulation issues, roadway capacity
problems.
F:\PUD Documents\Artesa Pointe 9-03-03 .DOC 9/16/2003
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Packet Pg. 2237 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
6-4
H. Nothing in any development order will vest the right of access over and above a
right in/right out condition. Neither will the existence, or lack of, a future median
opening be the basis for any future cause of action for damages against the County
by the Developer(s), its successor(s) in title, or assignee(s).
I. The development shall be designed to promote the safe travel of all users
including pedestrians and bicyclists. Pedestrian and bicycle travel ways shall be
separated from vehicular traffic in accordance with recognized standards and safe
practices, as determined by Collier County Staff.
J. The Developer(s) shall be responsible for the cost of any and all traffic signal(s),
at any and all development entrances( s ), when determined warranted and
approved by FDOT. When warranted, upon the completion of the installation,
inspection, burn-in period, and final approval/acceptance of any and all traffic
signal(s), said traffic signal(s) shall be turned over (for ownership) to Collier
County, and will then be operated and maintained by Collier County
Transportation Operations Department. Any negotiations relevant to "fair share"
payment(s), or reimbursement(s), from any and all other neighboring
developer(s)/property owner(s), that directly benefit from said traffic signal(s),
will be determined based upon percentage of usage/impact.
K . The Developer(s) shall provide any and all site related transportation
improvement(s) including, but not limited to, any and all necessary tum lane(s)
improvement(s) at the development entrance(s) prior to the issuance of the first
permanent certificate of occupancy. Said improvements are considered site
related, and therefore, do not qualify for impact fee credits. When said turn lane
improvement(s), whether left turn lane(s) and/or right turn lane(s), are determined
to be necessary, right-of-way and/or compensating right-of-way, shall be provided
in conjunction with said improvement(s), as determined by Collier County Staff.
L. All internal access(es), drive isle(s), sidewalk(s), not located within County right-
of-way shall be privately maintained by an entity created by the Developer(s), its
successor( s) in title, or assignee( s ).
M. Joint/shared access(es) may be required by Collier County Staff, as a condition of
site development plan approval.
N. Frontage, midpoint and/or backside interconnection(s) may be required by Collier
County Staff, as a condition of site development plan approval.
0 . Arterial level street lighting shall be provided by the Developer at all project
entrances prior to issuance of a certificate of occupancy.
F:\PUD Documents\Artesa Pointe 9-03-03 .DOC 9/16/2003
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Packet Pg. 2238 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
6-5
P. The primary access, loop road connecting U.S. 41 with S.R. 951, shall not be
gated, and shall be open to the public. Provisions for future interconnections to
properties north of the access road shall be made at the time of plat or site
development plan approval.
F:\PUD Documents\Artesa Pointe 9-03-03.DOC 9/16/2003
16.K.8.c
Packet Pg. 2239 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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16.K.8.c
Packet Pg. 2240 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-
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16.K.8.c
Packet Pg. 2241 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-
STATE OF FLORIDA)
COUNTY OF COLLIER)
I, DWIGHT E. BROCK, Clerk of Courts in and for the
Twentieth Judicial Circuit, Collier County, Florida, do
hereby certify that the foregoing is a true and correct
copy of:
ORDINANCE 2003-46
Which was adopted by the Board of County Commissioners
on the 23rd day of September, 2003, during Regular Session.
WITNESS my hand and the official seal of the Board of
County Commissioners of Collier County, Florida, this 26th
day of September, 2003.
DWIGHT E. BROCK . _, ,,:. \-J•-~,:·o.1.,.: .
Clerk of Courts and . ·crerkr.•-:.~
. . '. /.. Ex-officio to Boat:ff1 -9f. · ·-:. ·.,·
County Commissiori~rs : ·-.. -~.
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~ I -~ ~( •. ' ;~e_;':·,, :,l : ~ .· ~·•·· ~~-., ' '~ :_ ··-·-::-.: . -~-t ' ..
By: Patricia L.~·0 Morgan~t~~-. ___ / '.
Deputy Clerk Ol)•~~o6 •/(~:w~· .
. ... ... ' . ·~ ........ '
16.K.8.c
Packet Pg. 2242 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
ORDINANCE NO. 04 -..1.L_
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONER[
AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, THi;·
COLLIER COUNTY LAND DEVELOPMENT CODE, BY PROVIDING :
FOR SCRIVENER'S ERROR AMENDMENTS TO CORRECT .
ORDINANCE 03-46, THE ARTESA POINTE PLANNED UNt:f.-
DEVELOPMENT (PUD); AND BY PROVIDING FOR AN EffECTI~,_
('0
DATE. ::5::
CJ-! r-0
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WHEREAS, THE Collier County Board of County Commissioners adopted Ordinance 03-46 for
the Artesa Pointe Planned Unit Development PUD on September 23, 2003; and
WHEREAS, following said action in adopting said Ordinance, a zoning atlas map n~mber was
omitted and such omission constitutes a scrivener's error.
NOW, THEREFORE, BE IT ORDAINED, BY the Board of County Commissioners of Collier
County, Florida that:
SECTION ONE: SCRIVENER 'S ERROR AMENDMENT
The title of Ordinance No . 03-46, the Artesa Pointe PUD, is hereby amended to read as follows:
AN ORDINANCE AMENDING ORDINANCE NUMBER 91-102, THE
COLLIER COUNTY LAND DEVELOPMENT CODE WHICH INCLUDES
THE COMPREHENSlVE ZONING REGULATIONS FOR TH E
UNINCORPORATED AREA OF COLLIER COUNTY, FLORIDA BY
AMENDING THE OFFICIAL ZONfNG MAP~ NUMBERED 1603S AND
1603N AND BY CHANGING THE ZONING CLASSIFICATION OF THE
HEREIN DESCRIBED REAL PROPERTY FROM "RSF-3" TO ··PUD"
PLANNED UNIT DEVELOPMENT KNOWN AS ARTESA POINT PUD FOR
PROPERTY LOCATED ON THE EAST SIDE OF COLLIER BOULEY ARD
(CR-951) AND THE SOUTH SIDE OF U.S . 41 (TAMIAMI TRAIL) EAST, IN
SECTION 03 , TOWNSHIP 51 SOUTH, RANGE 26 EAST, COLLIER COUNTY,
FLORIDA, CONSISTING OF 82± ACRES PROVIDING FOR THE REPEAL
OF ORDfNANCE NUMBER 02-15, THE HENDERSON CREEK PUD ; AND BY
PROVIDING AN EFFECTIVE DA TE.
SECTION TWO: SCRIVENER 'S ERROR AMENDMENT
Section One of Ordinance No . 03 -46 , the Artes a Pointe PUD, is hereby amende d to re ad as follow s :
SECTION ONE:
The zoning classification of the herein described real property located in Section 3, Township 51
South , Range 26 East, Collier County Florida, is changed from "RSF-3" and "PUD" to "PUD" Planned
Unit Development in accordance with the Artesa Pointe PUD Document, attached hereto as Exhibit "A ",
which is incorporated by reference herein and by reference made part hereof. The Official Zoning Atlas
Map~ numbered I 603S and 1603N, as described in Ordinance Number 91-102, attd the Land De velopment
Code, is hereby amended accordingly.
SECTION THREE: EFFECTlVE DA TE
This Ordinance shall become effective upon filing with the Department of State.
Words strnelc thr01:1gl=i are deleted; words underlined are added.
-1-
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Packet Pg. 2243 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County,
Florida, thisd3~ day of t1{u,cb , 2004.
~"''. Xb-~ Matjori. Student
Assistant County Attorney
This ordinance filed with the
S.~tary of State's ,Offlmte
Qfi.':::: 1 day of {}y}6J'.1
and acknowledgement · thdt
fil" . .,
of ........... ~-'-A--
......Lb,C,4.ll.A..,d.,Jl.""""4..u:;apw,.,v'\,-f D. l-.
Words strnel. thF01:Jgh are deleted; words underlined are added .
-2-
16.K.8.c
Packet Pg. 2244 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
STATE OF FLORIDA)
COUNTY OF COLLIER)
I, DWIGHT E. BROCK, Clerk of Courts in and for the
Twentieth Judicial Circuit, Collier County, Florida, do hereby
certify that the foregoing is a true copy of:
ORDINANCE NO. 2004-17
Which was adopted by the Board of County Commissioners on
the 23 rd day of March, 2004, during Regular Session.
WITNESS my hand and the official seal of the Board of
County Commissioners of Collier County, Florida, this 24th day
Of March, 2004.
16.K.8.c
Packet Pg. 2245 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Co~e-r County ""~ .. Growth Manag ement Department
LAND DEVELOPMENT CODE AMENDMENT
PETITION
PL20220000207
ORIGIN
Board of County
Commissioners (Board)
HEARING DATES
BCC TBD
CCPC TBD
DSAC 5/4/2022
DSAC-LDR 3/9/2022
DSAC-LDR
SUMMARY OF AMENDMENT
This Land Development Code (LDC) amendment is intended to further
revise and clarify the procedures and appro v al process for Comparable Use
Determinations within zoning districts and planned unit of developments
after the Board approved a similar amendment in 2020 .
LDC SECTIONS TO BE AMENDED
2.03.00 Zoning Districts; Permitted Uses , Accessory Uses, and
Conditional Uses
2.03 .03 Commercial Zoning Districts
2.03.04 Industrial Zoning Districts
2.03.05 Civic and Institutional Zoning Districts
2.03.07 Overlay Zoning Districts
2.03.09 Open Space Districts
10.02.06 Requirements for Permits
ADVISORY BOARD RECOMMENDATIONS
DSAC
Approval with recommendations TBD
CCPC
TBD
BACKGROUND:
Prior to the adoption of Ordinance 2020-44, an applicant requesting a Comparable Use Determination
(CUD) would file an application for a Zoning Verification Letter (ZVL) and then have the ZVL
(including backup material) affirmed by either the Hearing Examiner (HEX) or Board of Zoning
Appeals (BZA). This process was criticized by customers for being confusing and by staff for having
no formal evaluation criteria. When the Board adopted Ordinance 2020-44 , the CUD process was
changed to eliminate the ZVL. Staff now evaluates each application based on the new standards and
provides a written Staff Report with a recommendation to either the HEX or BZA.
The CUD process is currently connected to the list of permitted uses in the Commercial Zoning Districts
(C-1 through C-5), Business Park (BP), Public Use (P), Golden Gate Parkway Overlay District
(GGPOD), and the Planned Unit Development district (PUD), when such PUD contains specific
provisions within its respective ordinance. The Bayshore Zoning Overlay District (BZO) and the
Gateway Triangle Zoning Overlay District (GTZO), formerly known as the Bayshore Mixed Use District
(BMUD) and the Gateway Triangle Mixed Use District (GTMUD), also contain provisions allowing the
County Manager to make a final determination as to whether a particular use, which is unlisted in the
Table of Uses , is within the same class of uses as a listed use . This provision was established by
Ordinance 2012-3 9 and overlooked in the formation of the recent updates to the CUD process. This
proposed LDC amendment shall delete these provisions. The C-1 through C-5 zoning districts also
contain a provision allowing for other permitted commercial uses and professional services to be
considered comparable. This provision shall be revised, so that only uses which exclusively serve the
administrative functions of a business shall be permitted. This change is appropriate, because those
commercial uses and professional services that are purely associated with activities conducted in an
office are permitted throughout all these commercial zoning classifications.
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Packet Pg. 2246 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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Growth Management Departm ent
On October 12, 2021, the Board directed staff to bring back an LDC amendment emphasizing the need
for having the conditional use process be applied to CUDs. It was the Board's concern that comparable
uses should be examined for comparability, compatibility, and consistency on a site-specific basis only
and not applied uniformly to all areas within the County sharing the same zoning district or to other
zoning classifications having higher intensities. As such, this LDC amendment shall clear any confusion
or the misapplication of the scope of a CUD, so that each request is restricted to a site-specific location
(e.g., lot, parcel, tract of land, etc.) and correct any unintended consequence of expanding the CUD
process beyond for which the Board intends. It shall also authorize a CUD for whenever there is a list
of permissible by right, accessory, or conditional uses.
As proposed, the CUD process shall be combined with the conditional use provisions of LDC section
10.08.00 for all zoning classifications, except for when a PUD explicitly contains the provision, "any
other use which is comparable in nature with foregoing uses and is consistent with the permitted uses
and purpose and intent statement of the district" or any similar phase that provides for a comparable use
which is not clearly defined or described in the list of permitted uses and requires the discretion of the
County Manager or their designee. In this instance, only the procedures and standards of LDC section
10.02.06 K. shall apply. Unlike other zoning classifications, PUDs are different because they are planned
developments under unified ownership or control, limited to their legal boundaries at a specific location
in the County, and contain a tailored list of allowable uses and development standards.
The CUD would ultimately be decided by either the HEX or BZA, depending on the scope of the
application. The conditional use provisions of LDC section 10.08.00 allow for the hearing bodies to
place special conditions on each request, as deemed appropriate, to ensure the application will not
adversely affect the public and the surrounding properties. A companion amendment to the
Administrative Code will establish in Chapter 3, a new subsection C.4 , "Conditional Use-Comparable
Use Determination (CU-CUD)" and modify Chapter 3. L to read "Comparable Use Determination in
PUDs (PUD-CUD)."
DSA C-LDR Subcommitte e Recommendations
The subcommittee unanimously recommended approval on March 9, 2022, with two caveats: that staff
will look at all the overlay districts and see if any others need to be changed in accordance with these
measures and to clarify the narrative's background section in terms of how the system of allowed
comparable uses in zoning districts is described. The narrative has been revised and all overlay zoning
districts are included in the amendment.
FISCAL & OPERATIONAL IMPACTS GMP CONSISTENCY
The CU-CUD application fee shall be charged the The proposed LDC amendment has been reviewed
same fee as for a Conditional Use Permit at by Comprehensive Planning staff and may be
$4,000. For a PUD-CUD application, the fee deemed consistent with the GMP.
remains the same at $1 ,000 and $100 per hour as
needed upon completion of staffs review and
research and provided a Conditional Use Permit
is not required.
EXHIBITS: A) Administrative Code Chapters 3 C.4. and 3 L.
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Packet Pg. 2247 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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Amend the LDC as follows:
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 uses
contains the phrase "any other use 11,ihich 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 1.vhich is not clearly defined
or described in the list of permitted uses, which requires the discretion of the County
Manager or designee as to 1.vhether 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 it may be determined through
the process outlined in LDC section 10.02.06 K. that an unlisted use is comparable
in nature to a use that is permissible by right, or as an accessory or conditional use
in that respective zoning district.
* * * * * * * * * * * *
# # # # # # # # # # # #
2.03.03 -Commercial Zoning Districts
A. Commercial Professional and General Office District (C-1 ). The purpose and intent of the
commercial professional and general office district C-1 is to allow a concentration of office
type buildings and land uses that are most compatible with , and located near, residential
areas. Most C-1 commercial, professional, and general office districts are contiguous to,
or when within a PUD, will be placed in close proximity to residential areas, and, therefore,
serve as a transitional zoning district between residential areas and higher intensity
commercial zoning districts. The types of office uses permitted are those that do not have
high traffic volumes throughout the day, which extend into the evening hours. They will
have morning and evening short-term peak conditions. The market support for these office
uses should be those with a localized basis of market support as opposed to office
functions requiring inter-jurisdictional and regional market support. Because office
functions have significant employment characteristics , which are compounded when
aggregations occur, certain personal service uses shall be permitted, to provide a
convenience to office-based employment. Such convenience commercial uses shall be
made an integral part of an office building as opposed to the singular use of a building.
Housing may also be a component of this district as provided for through conditional use
approval.
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 C-1 commercial
professional and general office district.
a. Permitted uses.
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Packet Pg. 2248 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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B.
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41. Any other commercial use or professional service 1,vhich is
comparable in nature with the foregoing uses including those that
exclusively serve§ the administrative as opposed to the operational
functions of a business and ara 1§ associated purely with activities
conducted in an office , as determined by the Hearing Examiner or
CCPC, pursuant to LDC section 10.02.06 K .
* * * * * * * * * *
Commercial Convenience District (C-2). The purpose and intent of the commercial
convenience district (C-2) is to provide lands where commercial establishments may be
located to provide the small-scale shopping and personal needs of the surrounding
residential land uses within convenient travel distance except to the extent that office uses
carried forward from the C-1 district will expand the traditional neighborhood size.
However, the intent of this district is that retail and service uses be of a nature that can be
economically supported by the immediate residential environs. Therefore, the uses should
allow for goods and services that households require on a daily basis, as opposed to those
goods and services that households seek for the most favorable economic price and,
therefore, require much larger trade areas. It is intended that the C-2 district implements
the Collier County GMP within those areas designated agricultural/rural; estates
neighborhood center district of the Golden Gate Master Plan; the neighborhood center
district of the lmmokalee Master Plan; and the urban mixed use district of the future land
use element 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-2 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 a 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 C-2 commercial
convenience district.
*
a. Permitted uses.
* *
73.
74 .
* * * * * * * * *
Any other commercial use or professional service s which is
comparable in nature with the foregoing uses including those that
exclusively serve§ the administrative as opposed to the operational
functions of a business and ara 1§ associated purely with activities
conducted in an office.
Any other commercial convenience use which is comparable in
nature with the list of permitted uses and consistent with the
purpose and intent statement of the district, as determined by the
Hearing Examiner or CCPC, pursuant to LDC section 10.02.06 K .
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Packet Pg. 2249 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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-7&.-74 . An existing lawful structure over 1,800 sq. ft. as of July 14 , 2014
may be occupied by any C-2 permitted use with a 1,800 sq. ft. or
greater limitation.
* * * * * * * * * *
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).
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a. Permitted uses.
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* * * * * * * * * *
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.
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Any other commercial use or professional service s which is
comparable in nature v.iith the foregoing uses including those that
exclusively serve§ the administrative as opposed to the operational
functions of a business and af0 i§. associated purely with activities
conducted in an office .
Any other intermediate commercial use which is comparable in
nature with the list of permitted uses and consistent with the
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Packet Pg. 2250 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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purpose and intent statement of the district, as determined by the
Hearing Examiner or CCPC, pursuant to LDC section 10.02.06 K.
9-7-:-96. 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.
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General Commercial District (C-4). The general commercial district (C-4) is intended to
provide for those types of land uses that attract large segments of the population at the
same time by virtue of scale, coupled with the type of activity. The purpose and intent of
the C-4 district is to provide the opportunity for the most diverse types of commercial
activities delivering goods and services, including entertainment and recreational
attractions, at a larger scale than the C-1 through C-3 districts. As such, all of the uses
permitted in the C-1 through C-3 districts are also permitted in the C-4 district. The outside
storage of merchandise and equipment is prohibited, except to the extent that it is
associated with the commercial activity conducted on-site such as, but not limited to,
automobile sales, marine vessels , and the renting and leasing of equipment. Activity
centers are suitable locations for the uses permitted by the C-4 district because most
activity centers are located at the intersection of arterial roads. Therefore the uses in the
C-4 district can most be sustained by the transportation network of major roads. The C-4
district is permitted in accordance with the locational criteria for uses and the goals,
objectives, and policies as identified in the future land use element of the Collier County
GMP. The maximum density permissible or permitted in a district shall not exceed the
density permissible under the density rating system.
1. The following uses, as defined 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 general
commercial district (C-4).
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a. Permitted uses.
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141. Any other commercial use or professional service s which is
comparable in nature with the foregoing uses including those that
exclusively serve§ the administrative as opposed to the operational
functions of a business and ara 1.§ purely associated with activities
conducted in an office.
142. Any other general commercial use which is comparable in nature
with the list of permitted uses and consistent with the purpose and
intent statement of the district, as determined by the Hearing
Examiner or CCPC, pursuant to LDC section 10.02.06 K.
* * * * * * * * * *
Heavy Commercial District (C-5). In addition to the uses provided in the C-4 zoning district,
the heavy commercial district (C-5) allows a range of more intensive commercial uses and
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Packet Pg. 2251 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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services which are generally those uses that tend to utilize outdoor space in the conduct
of the business. The C-5 district permits heavy commercial services such as full-service
automotive repair, and establishments primarily engaged in construction and specialized
trade activities such as contractor offices, plumbing, heating and air conditioning services,
and similar uses that typically have a need to store construction associated equipment
and supplies within an enclosed structure or have showrooms displaying the building
material for which they spt6ecialize. Outdoor storage yards are permitted with the
requirement that such yards are completely enclosed or opaquely screened. The C-5
district is permitted in accordance with the locational criteria for uses and the goals,
objectives, and policies as identified in the future land use element of the Collier County
GMP.
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 heavy
commercial district (C-5).
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a. Permitted uses.
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182. Any other commercial use or professional service s 11rhich is
comparable in nature with the foregoing uses including those that
exclusively serve.§ the administrative as opposed to the operational
functions of a business and ara 1.§ purely associated with activities
conducted in an office.
183. Any other heavy commercial use 'Nhich is comparable in nature with
the list of permitted uses and consistent with the purpose and intent
statement of the district, as determined by the Hearing Examiner or
CCPC, pursuant to LDC section 10.02.06 K.
* * * * * * * * * *
# # # # # # # # # #
2.03.04 -Industrial Zoning Districts
* * * * * * * * * * * * *
B. Business Park District (BP). The purpose and intent of the business park district (BP) is to
provide a mix of industrial uses, corporate headquarters offices and business/professional
offices which complement each other and provide convenience services for the employees
within the district; and to attract businesses that create high value added jobs. It is intended
that the BP district be designed in an attractive park-like environment, with low structural
density and large landscaped areas for both the functional use of buffering and enjoyment
by the employees of the BP district. The BP district is permitted by the urban mixed use,
urban commercial, and urban-industrial districts of the future land use element of the
Collier County GMP.
1. The following uses, as identified within the latest edition of the Standard Industrial
Classification Manual, or as otherwise provided for within this section, are
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Packet Pg. 2252 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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permitted as of right, or as uses accessory to permitted primary or secondary uses
or are conditional uses within the business park district.
a. Permitted primary uses. One hundred percent of the total business park
district acreage is allowed to be developed with the following uses:
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Any other use which is comparable in nature 1Nith the list of
permitted uses and consistent 1,0.i ith the purpose and intent
statement of the district, as determined by the Hearing Examiner or
CCPC, pursuant to LDC section 10.02.06 K.
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2.03.05 -Civic and Institutional Zoning Districts
A. Public Use District (P). The purpose and intent of public use district (P) is to accommodate
only local, state and federally owned or leased and operated government facilities that
provide essential public services. The P district is intended to facilitate the coordination of
urban services and land uses while minimizing the potential disruption of the uses of
nearby properties.
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4. The following uses are permitted as of right, or as accessory or conditional uses,
in the public use district (P).
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Any other public structures and uses which are comparable in
nature with tho list of permitted uses, and consistent with tho
purpose and intent statement of tho district, as determined by the
Hearing Examiner or CCPC, pursuant to LDC section 10.02.06 K.
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2.03.07 -Overlay Zoning Districts
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F. Golden Gate Parkway Overlay District (GGPOD).
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5. Table of Uses.
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Packet Pg. 2253 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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b. Table 1.
Use Category Mixed Use Downtown
Activity Center
Center Commercial
Subdistrict Subdistrict
(GGPOD-(GGPOD-
AC)1 DT)1
Residential Uses
1) Artist village. p p
2) Dwelling, Multi-Family, including townhouses. p p
3) Live-work units. p p
4) Any use listed as permitted in the underlying zoning. p p
5) Any use listed as a conditional use in the underlying zoning cu cu
district.
Commercial Uses 2
1) Any use listed as permitted in the underlying zoning district. p p
2) Any use listed as a conditional use in the underlying zoning C!l C!l
district.
3) Any use listed as a permitted use in any of the C-1 , C-2, or p p
C-3 zoning districts, without size limitations.
4) Any use listed as a conditional use in any of the C-1 , C-2, or p CU 4
C-3 zoning districts , without size limitations.
5) Any use listed as a permitted use in the C-4 or C-5 zoning p
districts.
6) Any use listed as a conditional use in the C-4 or C-5 zoning CU 4
districts .
7) Hotels and motels (7011 , 7021, and 7041 ). p p
Economic Development Uses2 • 3
1) Aircraft and parts (3721-3728). p
2) Beverages (2082-2087). p
3) Communications equipment (3661-3669). p
4) Computer and office equipment (3571-3579). p
5) Construction , mining , and materials handling (3531 , 3534-p
3537).
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Packet Pg. 2254 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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6) Dental laboratories (8072). p
7) Drugs (2833-2836). p
8) Electrical industrial apparatus (3621-3629). p
9) Electric lighting and wiring equipment (3641-3646, 3648). p
10) Electric transmission and distribution equipment (3612-p
3613).
11) Electronic components and accessories (3671-3679). p
12) Engines and turbines (3511-3519). p
13) Farm machinery and equipment (3523-3524). p
14) Furniture and fixtures, not elsewhere classified (2599). p
15) General industrial machinery and equipment (3561, 3563, p
3565-3569).
16) Household appliances, not elsewhere classified (3639). p
17) Household audio and video equipment, and audio (3651-p
3652).
18) Jewelers' findings and materials, and lapidary work (3915). p
19) Laboratory apparatus and analytical, optical, measuring, p
and controlling instruments (3821-3829).
20) Manufacturing industries, not elsewhere classified (3999). p
21) Metalworking machinery and equipment (3546 and 3548). p
22) Miscellaneous electrical machinery, equipment, and p
supplies (3691-3692, 3695-3699).
23) Miscellaneous industrial and commercial (3593-3599). p
24) Ophthalmic goods (3851 ). p
25) Photographic equipment and supplies (3861 ). p
26) Refrigeration and service industry machinery (3581-p
3582, 3586-3589).
27) Search, detection, navigation, guidance, aeronautical, and p
nautical systems and instruments (3812).
28) Special industry machinery, except metalworking (3552-p
3559).
29) Surgical , medical, and dental instruments and supplies p
(3841-3845).
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Packet Pg. 2255 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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30) Transportation equipment, not elsewhere classified (3799). P
31) Watches, clocks, clockwork operated devices, and parts P
(3873).
32) Any other Economic Development use 1.vhich is P
comparable in nature with the list of permitted uses contained
herein and consistent with the purpose and intent statement of
· , · · or Board
Notes:
1 See LDC section 2.03.07 F.6. for specific prohibitions in the GGPOD.
2 See LDC section 4.02.26 8 .14. for pollution control standards.
3 See LDC section 4.02.26 C. for design standards specific to Economic Development uses.
4 Vertical mixed use developments shall be permitted uses.
* * * * * * * * * * * * *
I. Bayshore Zoning Overlay District (BZO). This section provides special conditions for the
properties adjacent to Bayshore Drive as identified by the designation "BZO" on the
applicable official Collier County Zoning Atlas Map or map series.
*
*
*
*
* * * * * * * * * * * *
4. Bayshore Zoning Overlay District (BMUD) Subdistricts.
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*
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b. Use Categories and Table of Uses.
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*
* * * * * * * * * *
ii. Interpretation of the Table of Uses.
* * * * * * * * * *
b) Any use not listed in the Table of Uses is prohibited unless
the County Manager or designee may determine that it falls
within the same class as a listed use through the process
outlined in LDC section 1.06.00, Rules of Interpretation.
sthl Mixed Use Projects shall be limited to the permitted ,
accessory and conditional uses allowed in the BZO-NC and
BZO-W subdistricts , and subject to the MUP approval
process as outlined in LDC section 10.02.15. All other
projects may elect to establish uses, densities and
intensities in accordance with their underlying zoning,
except as restricted in LDC section 2.03.07 I.4.b.iv., or in
accordance with the Overlay Subdistrict. However, all
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Packet Pg. 2256 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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projects must comply with site development standards as
provided in LDC section 4.02.16.
* * * * * * * *
N. Gateway Triangle Zoning Overlay District (GTZO). This section contains special
conditions for the properties in and adjacent to the Gateway Triangle as identified by the
designation "GTZO" on the applicable official Collier County Zoning Atlas Map or map
series.
*
*
*
*
#
* * * * * * * * * * * *
4. Gateway Triangle Zoning Overlay District (GTZO) Subdistricts.
*
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*
#
* * * * * * * * * * *
b. Use Categories and Table of Uses.
* *
ii.
* *
# #
* * * * * * * * *
Interpretation of the Table of Uses.
a) Any uses not listed in the Table of Uses are prohibited. In
the event that a particular use is not listed in the Table of
Uses, the County Manager or designee may determine that
it falls \flJithin the same class as a listed use through the
process outlined in LDC section 1.06.00, Rules of
Interpretation.
9-fill The Table of Uses identifies uses as permitted uses (P);
accessory uses (A); conditional uses (CU), or a combination
of the three. Blank cells indicate that a use is not allowed in
the corresponding subdistrict; however, such use may be
permitted by the underlying zoning designation.
Gthl Mixed Use Projects shall be limited to the permitted,
accessory and conditional uses allowed in the GTZO-MXD
subdistrict, and subject to the MUP approval process as
outlined in LDC section 10.02.15. All other projects may
elect to establish uses, densities and intensities in
accordance with their underlying zoning or in accordance
with the Overlay Subdistrict. However, all projects must
comply with site development standards as provided in LDC
section 4.02.16.
* * * * * * * * *
# # # # # # # # #
2.03.09 -Open Space Zoning Districts
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Packet Pg. 2257 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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A. Golf Course and Recreational Use District "GC". The purpose and intent of "GC" district
is to provide lands for golf courses, recreational uses, and normal accessory uses,
including certain uses of a commercial nature. Recreational uses should be compatible in
scale and manner with residential land uses. The GC district shall be in accordance with
the urban mixed use district and the agricultural/rural mixed use district of the future land
use element of the Collier County GMP. All uses shall be subject to design standards
established in LDC section 5.05.15 H, and other applicable LDC standards.
*
*
*
#
1. The following subsections identify the uses that are permissible by right and the
uses that are allowable as accessory or conditional uses in the GC district.
*
*
*
#
* * * * * * * * * * *
c. Conditional uses. The following uses are permissible as conditional uses
in the GC district, subject to the standards and provisions established in
LDC section 10.08.00.
* *
11 .
* *
# #
* * * * * * * * *
Any other recreational use wh ich is compatible in nature with the
foregoing uses as determined by the Hearing Examiner or Board of
Zoning Appeals, as applicable.
* * * * * * * * *
# # # # # # # # #
10.02.06 -Requirements for Permits
K. Comparable Use Determination.
1.
2.
The following Comparable Use Determination (CUD) shall be used to determine
whether a use is comparable in nature with the list of permitted uses that are
permissible by right, the uses that are allowable as accessory or conditional uses,
and the purpose and intent statement of eaGR-the zoning district, overlay, or PUD.
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.
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Packet Pg. 2258 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
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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.
f. Except for properties located in a PUD. each petition for CUD shall require
minor conditional use approval or conditional use approval in accordance
with the procedures set forth in LDC section 10.08.00. If a PUD does not
contain 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 that provides for a use
that 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 in accordance with this
section and with the procedures set forth in LDC section 10.08.00.
The Administrative Code shall establish the process and application submittal
requirements to obtain a Comparable Use Determination.
* * * * * * * * * * *
# # # # # # # # # # #
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Packet Pg. 2259 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Attachment A -Administrative Code
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Collier County Land Development Code I Administrative Procedures Manual
Chapter 3 / Quasi-Judicial Procedures with a Public Hearing
C.4. Conditional Use -Comparable Use Determination (CU-CUD)
Reference LDC sections 2.03.00 A, 10.02.06 K, 10.08.00, LDC Public Notice section 10.03.06 B., C. or O. LDC
section 8 .10.00 and F.S. §125.66.
Applicability A Conditiona l Use -Comparable Use Determination shall be used to determine if a new use is
comparable, compatible, and consistent with the list of identified uses that are permissible by
right. or the uses that are allowable as accessory or conditional uses in a standard zoning
district. overlay, or a PUD ord inance. if such PUD does not contain 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 is not within the list of
permitted uses to provide for an unlisted use. See Chapter 3.L. for additional information
regarding Comparable Use Determination in PUDs.
Pre-Application A pre-application meeting is required .
Initiation The applicant files a "Conditional Use -Comparable Use Determination Application or an
Application for Public Hearing for Conditional Use II with the Zoning Division .
⇒see Chapter 1 D. for additional information regarding the procedural steps for initiating an
application.
Application The petition should include material necessary to demonstrate that the approval of the
Contents conditional use will be in harmony with the general intent and purpose of the LDC, will be
consistent with the Growth Management Plan, will not be injurious to the neighborhood or to
adjoining properties, or otherwise detrimental to the public welfare.
The application must include the following:
1. Applicant contact information.
2. Addressing checklist.
3. A cover letter briefly explaining the proposed project.
4. Property Ownership Disclosure Form.
5. The date the subject property was acquired or leased (including the term of the lease). If
the applicant has an option to buy, indicate the date of the option. the date the option
terminates, and anticipated closing date.
6. The name and mailing address of all registered Home Owners Associations and civic
associations whose members are impacted by the application .
7. Pre-application meeting notes.
8. A copy of the last recorded deed. contract for sale or agreement for sale. or a notarized
statement of ownership clearly.
9. PUD Ordinance and Development Commitment Information. if applicable.
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Packet Pg. 2260 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Attachment A -Administrative Code
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Collier County Land Development Code I Administrative Procedures Manual
Chapter 3 / Quasi-Judicial Procedures with a Public Hearing
10. A written petition that shows how the proposed use satisfies the findings outlined in
LDC section 10.08.00 .
11. Property information, including:
a. Legal description; or if the conditional use involves only part of a PUD. only a
legal description for the subject portion is required;
b. Property identification number;
c. Section, township and range;
d. Subdivision. unit. lot and block, or metes and bounds description;
e. Address of subject site and general location;
f. Size of property in feet and acres:
g. Property owner's name; and
h. Verification being requested.
12. If the property owner owns additional property contiguous to the subject property. then
the following information, regarding the contiguous property, must be included:
a. Legal description;
b. Property identification number;
c. Section. township. and range; and
d. Subdivision, unit. lot and block, or metes and bounds description .
13. Zoning information, including:
Adjacent zoning and land use.
14. Conditional Use request detail, identifying current zoning district. type of use and present
use of property.
15. A description of previous land use applications on the subject property, including whether
a public hearing was held on the property or any abutting properties within the year
preceding the application, and the nature of that hearing .
16. Conceptual site development plans at an appropriate scale showing the proposed
placement of structures on the property, provisions for ingress and egress, off-street
parking and off-street loading areas, refuse and service areas, and required yards, and
other open spaces. The conceptual site development plan does not replace the site
development plan (SOP) required by Chapter 4 of the Administrative Code .
17. Completed Statement of Utility Provisions.
18. Plans showing proposed locations for utilities.
19. Plans for screening and buffering the use with reference as to type, dimensions. and
character .
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16.K.8.c
Packet Pg. 2261 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Attachment A -Administrative Code
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Collier County Land Development Code I Administrative Procedures Manual
Chapter 3 / Quasi-Judicial Procedures with a Public Hearing
20. Plans showing the proposed landscaping and provisions for trees protected by County
regulations.
21. Plans showing the proposed signs and lighting. including type, dimensions, and character.
22. Environmental Data Requirements . ~See LDC section 3.08.00 A.
23. Environmental Data Requirements for PUD Zoning and Conditional Uses ~ See Chapter 7
A. of the Administrative Code.
24. Recent aerial photographs must be legible at the scale provided. The aerial shall identify
plant and/or wildlife habitats and their boundaries. The identification shall be consistent
with the Florida Department of Transportation Land Use Cover and Forms Classification
System. Developments shall identify, protect. conserve. and appropriately use native
vegetative communities and wildlife habitat.
25. An Architectural Rendering of proposed structures, if applicable, ~ See Chapter 4 A. of
the Administrative Code.
26. Traffic Impact Study ¢¢> See Chapter 7 B. of the Administrative Code .
27. If the property is located within an area of historical or archaeological probability, as
identified at the pre -app meeting, a historical and archaeological survey or waiver
application .
28. If the zoning district places additional requirements on the requested use, include
documentary evidence that those requirements are met.
29. Permits: All Federal, State. and local permits shall be submitted prior to construction and
before the pre-construction meeting. If approved by the County Manager or designee, an
applicant may submit Federal, State, and local agency permits at the pre-construction
meeting.
30. Owner/agent affidavit as to the correctness of the application.
31. Electronic copies of all documents.
32. Affidavit of Authorization.
33. A narrative statement that describes the determination request. the justification for the
use by a certified land use planner or a land use attorney and addresses the standards
within LDC section 10.02.06 K.2.
34. Additional materia ls may be requested by staff depend i ng on the use and justification
provided.
Notice for Minor Notification requ i rements are as follows. ~ See Chapter 8 of the Administrative Code for
Conditional Use additional notice information.
petitions
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Packet Pg. 2262 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Attachment A -Administrative Code
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Collier County Land Development Code I Administrative Procedures Manual
Chapter 3 / Quasi-Judicial Procedures with a Public Hearing
1. NIM: The NIM shall be completed at least 15 days prior to the Hearing Exam in er's receipt
of the staff report and application materials in accordance with the applicable sections of
the Administrative Code. The NIM shall be advertised, and a mailed written notice shall
be given to property owners in the notification area at least 15 days prior to the NIM
meeting.
2. Mailed Notice: Written notice shall be sent to property owners in the notification area
at least 15 days before the advertised Hearing Examiner hearing.
3. Newspaper Advertisements: The legal advertisement shall be published at least 15 days
before the advertised Hearing Examiner hearing in a newspaper of general circulation.
The advertisement shall include at a minimum:
a. Date, time, and location of the hearing;
b. Description of the proposed land uses:
c. Application number and project name;
d. PUD name and ordinance number;
e. Proposed permitted use;
f. Description of location; and
g. 2 in . x 3 in. map of the project location .
4. Sign: Posted at least 15 days before the advertised Hearing Examiner hearing date. ~
See Chapter 8 E. of the Administrative Code for sign template. f Please note: If the Minor
Conditional Use petition is to be heard before the BZA, the notice procedures shall be the
same as the procedures for all other Conditional Use petitions listed below.]
Notice for all Notification requirements are as follows. ~ See Chapter 8 of the Administrative Code for
other additional notice information.
Conditional Use
petitions _1"'-. --'-N'"""l'-M_:_T--"h-'--'e~N~I M--'-'-sC.C.h-'--'a"""l l'-b..C...e"----"-c..C...o'"""m""p'-I e"'-t.C....CeC....Cd'-a~t~I e....c.a..c...st.c....=1..c...5-'d"""a'-J.y..C...s '""'b-'e'-'-fo"'-r-'e'-t-'-'-h-'--'e'--"-a d"'-v..C...e"-'r-'-t'"'"1 s"""e"""d "'""p'""'u'""'b""-I i-'-c--"h-'-'ec..aa,;,.;,.r,;,.;,.i n=g.
The NIM shall be advertised and a mailed written notice shall be given to property owners
in the notification area at least 15 days prior to the NIM meeting .
2. Mailed Notice: Written notice shall be sent to property owners in the notification area
at least 15 days before the advertised public hearing.
3. Newspaper Advertisements: The legal advertisement shall be published at least 15 days
before each advertised public hearing in a newspaper of general circulation. The
advertisement shall include at a minimum:
a. Date, time, and location of the hearing;
b. Description of the proposed land uses;
c. Application number and project name;
d. PUD name and ordinance number;
e. Proposed permitted use;
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Packet Pg. 2263 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Attachment A -Administrative Code
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Collier County Land Development Code I Administrative Procedures Manual
Chapter 3 / Quasi-Judicial Procedures with a Public Hearing
f. Description of location; and
g. 2 in. x 3 in. map of the project location.
4. Sign: Posted at least 15 days before the advertised public hearing date. ⇒ See Chapter 8
E. of the Administrative Code for sign template.
Public Hearing The Hearing Examiner or BZA shall hold at least 1 advertised public hearing. If the BZA is the
for Minor final Decision Maker, the Minor Conditional Use petition shall follow the same public hearing
Conditional Use process as all other Conditional Use petitions.~ See Chapter 9 of the Administrative Code for
petitions the Office of the Hearing Examiner procedures.
Public Hearing
for all other
Conditional Use
petitions
Decision maker
for Minor
Conditional Use
petitions
Decision Maker
for all other
Conditional Use
petitions
1. The EAC shall hold at least 1 advertised public hearing, if required.
2. The Planning Commission shall hold at least 1 advertised public hearing.
3. The BZA shall hold at least 1 advertised public hearing.
The Hearing Examiner or BZA.
If the PUD ordinance language identifies the CCPC or the Planning Director (or other similar
County staff) as the authority to determine a use is comparable. compatible. and consistent. a
Staff Report will be presented to the Decision Maker for approval of the Comparable Use
Determination .
The BZA, following a recommendation from both the EAC. if required. and the Planning
Commission.
If the PUD ordinance language identifies the CCPC or the Planning Director (or other similar
County staff) as the authority to determine a use is comparable, compatible. and consistent. a
Staff Report will be presented to the Decision Make r for approval of the Comparable Use
Determination.
Review Process The Zoning Division will review the application, identify whether additional materials are
needed. and prepare a Staff Report to the Hearing Examiner or BZA.
Recording of Within 30 days of approval of the conditional use, the owner or developer at its expense shall
Developer record in the Public Records of Collier County a Memorandum of Understanding of Developer
Commitments Commitments or Notice of Developer Commitments that contains the legal description of the
property that is the subject of the land use petition and contains each and every commitment
of the owner or developer specified in the conditional use. The Memorandum or Notice shall
be in form acceptable to the County and shall comply with the recording requirements of
Chapter 695. F.S. A recorded copy of the Memorandum or Notice shall be provided to the
assigned Principal Planner. Zoning Division. within 15 days of recording of said Memorandum
or Notice.
Updated Resolution 2022-##
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16.K.8.c
Packet Pg. 2264 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Attachment A -Administrative Code
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Collier County Land Development Code I Administrative Procedures Manual
Chapter 3 / Quasi-Judicial Procedures with a Public Hearing
L. Comparable Use Determination in PUDs (PUD-CUD)
Reference LDC sections 2.03.00 A, 10.02.06 K, LDC Public Notice section 10.03.06 0 , LDC section
8.10.00 and F.S . §125 .66.
Applicability A Comparable Use Determination may shall be used to R=iake a eleterR=iination that
determine if a new use is comparable, compatible, and consistent with the list of
identified perR=iitteel uses in a stanelarel zoning elistrict, overlay, or PUD orelinance . that
are permissible by right, or the uses that are allowable as accessory or conditional uses
in a PUD ordinance if such PUD 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 in its list of permitted uses to
provide for an unlisted use . See Chapter 3. C.4. for addition information regarding the
Conditional Use -Comparable Use Determination.
Pre-Application A pre-application meeting is not required.
Initiation The applicant files a "Comparable Use Determination Application" with the Zoning
Division.
⇒see Chapter 1 D. for additional information regarding the procedural steps for initiating
an application.
Application The application must include the following:
Contents 1. Applicant contact information.
2. Property information, including:
• ~ Site folio number;
• Q:_ Site Address;
• £:. Property owner's name; and
• ~ Verification being requested.
3. A narrative statement that describes the determination request, the justification
for the use by a certified land use planner or a land use attorney and addresses the
standards within LDC section 10.02.06 K.2 .
4. Additional materials may be requested by staff depending on the use and
justification provided.
5. PUD Ordinance and Development Commitment H nformation, if applicable .
6. Electronic copies of all documents.
7. Addressing checklist.
8. Affidavit of Authorization.
9. Property Ownership Disclosure Form.
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Packet Pg. 2265 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Attachment A -Administrative Code
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Collier County Land Development Code I Administrative Procedures Manual
Chapter 3 / Quasi-Judicial Procedures with a Public Hearing
CeFJ1pleteRe55
aREi PreeessiRg
ef n pplieatieR
Notice
TRe Zoning Division will revie'"" tRe application for coR=lpleteness. After SblBR=lission of tRe
COR=lpletee:I application packet accoR=lpaniee:I ,...,itR tRe reqt1iree:I fee, tRe applieaRt will
receive a R=lailee:I or electronic response notifying tRe applieaRt tRat tRe petition is acing
processee:I. AccoR=lpanying tRat response ,,,,ill se a receipt for tRe payR=lent ane:I tRe
tracking nt1R=1ser (i.e ., XXPL201200000) assignee:! to tRe petition. TRis petition tracldng
nt1R=1ser sRot1le:I se notee:I on all fbltt1re correspone:lence regare:ling tRe petition.
Notification requirements are as follows. ~ See Chapter 8 of the Administrative Code
for additional notice information.
1. Newspaper Advertisement: At least 15 days before the hearing in a newspaper of
general circulation. The legal advertisement shall include:
• ~ Date, time, and location of the hearing;
• ~ Application number and project name;
• ~ PUD name and ordinance number;
• ~ Proposed permitted use; and
• ~ Description of location.
Public Hearing ~ The Hearing Examiner or the GQlG BZA shall hold at least 1 advertised public hearing.
¢:>See Chapter 9 of the Administrative Code for the Office of the Hearing Examiner
procedures.
Decision Maker The Hearing Examiner or the GQlG BZA .
If the PUD ordinance language identifies the CCPC or the Planning Director (or other
similar County staff) as the authority to determine a use is comparable, compatible, and
consistent, a Staff Report will be presented to the l=learing EJcaR=1iner or tRe CCPC Decision
Ma k er for approval of the Comparable Use Determination .
Review Process The Zoning Division will review the application and identify whether additional
materials are needed. Staff will prepare a Staff Report to present to the Hearing
Examiner or BZA Office of tRe l=learing EJEaR=liner or tRe CCPC for a e:lecision.
~ Appeal of a CoR=lparasle Use DeterR=lination sRall se pt1rst1ant to Ceete ef baws aREt
0retiRaR6e5 section 2S0 S8
Updated Resolution 2020 203 2022-##
21
G:\LDC Amendments\Advi sory Board s and Public Hearings\DSAC\2022\May 04\Meeting Materials\Word Version\PL20220000207 -CUD
updates .docx
16.K.8.c
Packet Pg. 2266 Attachment: Appeal Application (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
ES T. 1971
MARKJ. WOODWARD
Board Certified: Real Estate
Law and in Comominium &
Planned Development Law
ANTHONYP. PIRES, JR
Boanl Certified: City, County,
and Local Government Law
J. CHRISTOPHER LOMBARDO
ANTHONYJ. DIMORA
Licensed in FL and OH
LENORE T. BRAKEFIELD
CRAIG R WOODWARD
Senior Counsel
Board Certified: Real Estate Law
KENNETH V. MUNDY
ZACHARYW. loMBARDO
CAMERON G. WOODWARD
Ross E. SCHUIMAN
Licensed in FL and NY
F. SCOTT PAUZAR, Ill
CHRISTOPHERR. HEFLIN
REPLY TO:
[XI 3200 TAMIAMI TRAIL N.
SUITE 200
NAPLES, FL 34103
239-649-6555
239-649-7342 FAX
0 606 BALD EAGLE DRIVE
SUITE 500
P.O. BOX ONE
MARCO ISLAND, FL 34146
239-394-5161
239-642-6402 FAX
WWW.WPL-LEGALCOM
WOODWARD, PIRES & LOMBARDO, P .A.
ATTORNEYS AT LAW
June 7, 2022
By email to the County Attorney
Board of County Commissioners sitting as the Board of Zoning
Appeals
c/o County Attorney Jeffrey A. Klatzkow, Esq.
jeff.klatzkow@colliercountyfl.gov
Subject: 1. Request To Move Item From Consent Agenda 2.
Response to Executive Summary for the appeal of the
March 24, 2022, decision of the Hearing Examiner
regarding CUD-PL20210001966
To the Board of County Commissioners sitting as the Board of Zoning
Appeals ("BZA"),
At its meeting of June 14, 2022, the BZA will be presented Appellants
appeal of the March 24, 2022, decision of the Hearing Examiner
regarding CUD-PL20210001966 . It is our understanding that the item is
to be placed on the Consent Agenda. As an initial matter we object to
the item being placed on and considered as part of the Consent Agenda
and request that this matter be removed from the Consent Agenda and
fully considered by the BZA.
Appellants, by and through undersigned counsel, further respond to the
Executive Summary, by fully incorporating and restating their appeal,
filed on May 20, 2020, and stating, additionally, as follows:1
1 This filing and the submittal of the various documents, materials , and
arguments herein as part of this appeal is and is being made and provided
while reserving the right to supplement this filing w ith additional arguments
and additional materials once discovered and/or obtained. No rights ,
concerns, or objections of the Appellants concerning the Subject Comparable
Use Determination are waived by anything stated herein or omitted herefrom
and the right to present, make and submit additional arguments and materials
is specifically reserved .
16.K.8.d
Packet Pg. 2267 Attachment: Response to Executive Summary - Z. Lombardo Esq. 6-7-22 (22419 : Recommendation to deny the appeal of HEX Decision No.
I. Appellants are an aggrieved party.
The Appellants agree that the Florida Supreme Court has long recognized that
standing requires showing that one will suffer special damages that differ in kind,
rather than degree, from others in the community. Renard v. Dade County, 261
So.2d 832, 837 (Fla. 1972). One must show that their affected interest is different
from others in the community at large.
In this particular case, it is the analysis in the Albertson's case, cited in the
Executive Summary that provides the framework in which the special damages
here are shown to exist.
In the Albertson's case, standing was found to exist. See Skaggs-Albertson's v.
ABC Liquors, 363 So. 2d 1082, 1090 (Fla. 1978). Specifically, the Florida Supreme
Court found it persuasive that there were other regulatory matters, including where
liquor stores could be located, that cre.ated special damages.
In the appeal filed by Appellant it is argued Appellants do not object to more car
washes-indeed, Appellants do not object to more competition. Instead,
Appellants object to local ordinances being applied unevenly and improperly such
that Appellees are provided a special benefit. This is a special damage similar in
kind to the special damage found in the Albertson's case because it is a special
damage created by regulation itself.
Specifically, here, a PUD amendment by Appellee, not a comparative use
determination, should have been required in order to change the uses allowable in
the PUD. If the HEX determination, for which the HEX had no jurisdiction to render,
is not overturned, then Appellee will have been provided the special benefit of the
County's failure to adhere to its codes. This special benefit is a special damage to
Appellants who own a similar establishment nearby. The fact that Appellants may
be subject to more local competition is not the concern. Instead, what makes
Appellants aggrieved parties is that Appellants were limited in their site selection
by the application of County ordinances while Appellees were not because instead
of having to amend the PUD, a comparative use determination was improperly
2
16.K.8.d
Packet Pg. 2268 Attachment: Response to Executive Summary - Z. Lombardo Esq. 6-7-22 (22419 : Recommendation to deny the appeal of HEX Decision No.
used to permit a use that was prohibited, see § 2.02.03, Collier County Land
Development Code ("LCD"), by way of an erroneous procedure. A PUD
amendment, the appropriate method to permit the use at issue, requires more
extensive and rigorous review and public input, including final review by the Board
of County Commissioners.
Therefore, Appellants are aggrieved parties not because competition has
increased, but instead because competition has been allowed special benefits that
were not provided to Appellants, who instead, had to site their car wash in an area
where the zoning would allow them to do so.
II. Appellants were not required to make the argument on appeal before the
HEX in this circumstance because the argument is: lack of subject-matter
jurisdiction
In outlining the scope of review on appeal, Chapter 9 of the Collier County
Administrative Code states the Board of County Commissioners may:
Reject the Hearing Examiner's determination, except
that the Board may not modify the determination or
impose conditions, or reject the Hearing Examiner's
determination unless the Board expressly finds that
one or more of the Hearing Examiner's findings of fact
or conclusions of law is not supported by competent
substantial evidence in the official record, or that the
Hearing Examiner's determination otherwise
specifically failed to properly apply one or more of
the criterion in the LDC or GMP (emphasis added).
Here, Appellants are not arguing on appeal that there are facts, not in the record
that should be considered. Appellants are also not arguing that waivable
arguments not made before the HEX should be considered.
Instead, the argument in the appeal is the HEX had no subject-matter jurisdiction
to employ a comparative use determination because the subject PUD, the Artesa
3
16.K.8.d
Packet Pg. 2269 Attachment: Response to Executive Summary - Z. Lombardo Esq. 6-7-22 (22419 : Recommendation to deny the appeal of HEX Decision No.
PUD, does not provide for same. This is a non-waivable argument. In this narrowly
tailored appeal, Appellants are arguing that the HEX's determination specifically
failed to properly apply one or more of the criteria in the LDC related exclusively to
lack of subject-matter jurisdiction, which is not waivable (or conferrable), even by
consent.
Specifically, section 2.03.00.A. of the LDC states:
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.
§ 2.03.00, LDC ( emphasis added).
In the Executive Summary, it is pointed out that prior counsel for Appellants
appeared to have consented to the "process", but Florida law is clear: "subject-
matter jurisdiction cannot be conferred by waiver or consent." Peltz v. Dist. Court
of Appeal, 605 So. 2d 865, 866 (Fla. 1992) (emphasis added); see also Board of
Trustees of Internal Improvement Trust Fund v. Mobil Oil Corp., 455 So. 2d 412
(Fla. 2d DCA 1984), approved in part, quashed in part on other grounds, 492 So.
2d 339 (Fla. 1986), cert. denied, 479 U.S. 1065 (1987).
Further, Florida law is also clear that lack of subject-matter jurisdiction can be
raised at any time, including on appeal, for the first time. Hirsch v. Hirsch, 136 So.
3d 622, 623 (Fla. 2d DCA 2013). The reasoning for this is that when a judicial (or
in this case "quais-judicial") body makes a determination without subject-matter
jurisdiction, its doing so was void from the beginning.
4
16.K.8.d
Packet Pg. 2270 Attachment: Response to Executive Summary - Z. Lombardo Esq. 6-7-22 (22419 : Recommendation to deny the appeal of HEX Decision No.
These concepts have been explained by the Second District Court of Appeal as
follows:
It has been the historic law of this state that " subject
matter jurisdiction cannot be created by waiver,
acquiescence or agreement of the parties, or by error
or inadvertence of the parties or their counsel, or by the
exercise of power by the court; it is a power that arises
solely by virtue of law." Florida Export Tobacco Co. v.
Dep't of Revenue, 510 So. 2d 936, 943 (Fla. 1st DCA),
review denied, 519 So . 2d 986-987 (Fla . 1987).
Indeed, subject matter jurisdiction is so vital to a
court's power to adjudicate the rights of
individuals, that its absence can be questioned at
anytime, even after the entry of a final judgment or
for the first time on appeal. E.g., Stel-Den of
America, Inc. v. Roof Structures, Inc., 438 So. 2d 882
(Fla. 4th DCA 1983), review denied, 450 So. 2d 488
(Fla . 1984). Moreover, the fact that the lack of such
jurisdiction is never presented to a trial court does not
preclude an appellate court from considering the issue.
E.g., Hadley v. Hadley, 140 So. 2d 326 (Fla. 3d DCA
1962). Accordingly, we are obligated to consider 84
Lumber's contention that the trial court had no subject
matter jurisdiction in the dismissed case to enter the
order under review. Walt v. Walt, 57 4 So. 2d 205 (Fla.
1st DCA 1991 ).
84 Lumber Co. v. Cooper, 656 So. 2d 1297, 1298 (Fla.
2d DCA 1994) ( emphasis added).
Neither the Harding case, nor any other cases cited in the Executive Summary
hold differently. Instead, the Harding case, for example, is limited to waivable
5
16.K.8.d
Packet Pg. 2271 Attachment: Response to Executive Summary - Z. Lombardo Esq. 6-7-22 (22419 : Recommendation to deny the appeal of HEX Decision No.
arguments, such as whether a non-subject-matter-jurisdiction standard, and thus
waivable, was correctly applied. Dep't of Bus. & Prof'/ Reg. v. Harden, 10 So. 3d
647, 649 (Fla. 1st DCA 2009).
Here, whether the HEX could hear and rule upon the comparative use
determination at all was a non-waivable matter of subject-matter jurisdiction. The
HEX is an officer whose jurisdiction is conferred by ordinance. Because, as argued
in Appellants' appeal, there is no jurisdiction conferred by the Artesa PUD, County
Code, or LDC, there was no subject-matter jurisdiction and the HEX decision on
appeal should be deemed void.
Based on Florida law, Appellants' counsel could not confer this jurisdiction by
consent and this lack of subject matter jurisdiction could be raised, for the first time
on appeal, because it is a non-waivable argument.
Ill. Conclusion
The HEX simply did not have jurisdiction to hear or make the comparable use
determination in this case.
Whether the HEX could engage in a comparable use determination, is a matter of
subject-matter jurisdiction, and this issue can be brought up for the first time on
appeal.
Because the Appellants are aggrieved parties, not because of competition, but
because of what amounts to regulatory discrimination, and because Appellants'
prior counsel could not consent and thereby create subject-matter jurisdiction, this
appeal should be considered.
Because of the arguments in the appeal itself, this appeal should be granted, and
the HEX's determination should be quashed as void.
Zachary W. Lomba do, Esq.
Copies to client and to counsel for Appellee, Jeff E. Wright, Esq.
6
16.K.8.d
Packet Pg. 2272 Attachment: Response to Executive Summary - Z. Lombardo Esq. 6-7-22 (22419 : Recommendation to deny the appeal of HEX Decision No.
June 8, 2022
SENT VIA EMAIL
Hon. William “Bill” McDaniel, Chairman
Collier County Board of County Commissioners
3299 Tamiami Trail East, Suite 303
Naples, Florida 34112
Re: Applicant’s position / Modwash – Appeal of Comparable Use Determination (“CUD”)
(PL20210001966)
Dear Chairman McDaniel and Commissioners:
On behalf of the Applicant, please accept this as Applicant’s response to the appeal of the
referenced decision that is currently under consideration on the BCC’s June 14th consent agenda.
In summary, we agree with the County Attorney’s assessment and recommendation to deny the
appeal. As further support of the Applicant’s position, we offer the following:
PRELIMINARY MATTERS
• Appellants did not participate at the HEX hearing: Contrary to the Appellants’ assertion,
the Appellants (FTY Florida, LLC & Niagara Falls Hydro, LLC) did not, “by their authorized
agents,” attend or participate in the March 24, 2022 HEX hearing that is currently on
appeal (see May 20, 2022 letter accompanying the appeal, p.2, 2nd para.).
There was a participant at the hearing that was represented by counsel: “Dolphin Auto
Spa, National Auto Spa, Inc., at 6240 Collier Blvd.” (See transcript, p.14, lines 10-12). This
is a different entity from either of the Appellants. Appellants made no appearance at the
HEX hearing, and neither entity is mentioned in the transcript. Further, there is nothing in
the record of the HEX proceedings to suggest any connection between the Appellants and
any party or participant appearing at the HEX hearing.
• Appellants do not object to the decision itself: Notably, Appellants do not oppose the HEX
decision itself; they do not argue that the Applicant failed to meet the required criteria;
they do not allege any procedural due process deprivation; they are not alleging any error
in the HEX proceedings themselves; and they are not arguing that the HEX decision was
unsupported by competent substantial evidence.
Their only argument is that the HEX purportedly lacked subject matter jurisdiction, despite
the LDC and Administrative Code both clearly conferring to the HEX both the authority and
Pelican Bay Financial Center
8889 Pelican Bay Boulevard, Suite 400
Naples, Florida 34108
Tel: 239.344.1100• Fax: 239.498.6225• www.henlaw.com
Naples • Fort Myers • Bonita Springs
16.K.8.e
Packet Pg. 2273 Attachment: Response of applicant Modwash - J Wright Esq. 6-8-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Henderson, Franklin, Starnes & Holt, P.A.
subject matter jurisdiction to hear comparable use determinations (“CUD’s”), and despite
their failure to raise this issue the HEX hearing. This is not a valid basis to appeal a HEX
decision, particularly when the Appellants’ “prior counsel” agreed on the record that the
HEX does indeed have subject matter jurisdiction.
• Appellants’ arguments are over staff’s interpretation: This matter came before the HEX,
consistent with the County’s LDC and Administrative Code; consistent with previous
applications; and consistent with staff’s interpretation of applicable regulations.
Appellant’s “prior counsel” at the HEX hearing never objected to staff’s interpretation, and
specifically stated on the record that it was appropriate for the HEX to make a comparable
use determination. Appellants have now re-interpreted the LDC, and their interpretation
is different from staff’s and their own stated at the hearing. A disagreement over
interpretation of the LDC is not a basis to appeal a HEX decision granting a CUD.
DENIAL OF THE APPEAL IS APPROPRIATE
• Lack of standing: Under the Hearing Examiner Rules of Procedure, “either the County or
the landowner may appeal the determination to the Board of County Commissioners.”
Appellants are neither, and they lack standing to bring the appeal in the first place.
Further, under Section 250-58, Code of Laws and Ordinances, Appellants are not
“aggrieved” parties, but merely competitors. Appellants have not cited (either at the HEX
hearing or in the appeal) any interest protected by the Land Development Code that would
warrant “quashing” a perfectly valid HEX decision that was made following a properly
conducted quasi-judicial hearing.
Additionally, as noted above, neither Appellant made any appearance or provided any
testimony on the record before the HEX.
Appellants failed to appear at the hearing before the HEX, and they are not a party to the
HEX proceeding. They are not the land owner, they were never a party at the HEX
proceeding, and they were not “participants” at the HEX hearing. They have not articulated
any protected interest that is affected by the CUD, and they have not established that they
are an “aggrieved” party.
• Failure to preserve arguments on appeal: Another basis for denial of the appeal is
Appellants’ failure to preserve arguments on appeal. The proposed appeal is based on one
particular argument – i.e., that consideration of the CUD request was inappropriate
because the PUD language did not specify the right to seek a CUD.
This argument was never made at the hearing. In fact, as the County Attorney has pointed
out, Appellants’ purported “prior counsel” took the opposite position at the hearing:
When asked at the hearing, representatives of Dolphin Auto Spa specifically approved the
process of the having the Hearing Examiner consider the CUD (“Of course, I don’t disagree
with the process”) (see transcript, p. 14 of 28, middle of page).
16.K.8.e
Packet Pg. 2274 Attachment: Response of applicant Modwash - J Wright Esq. 6-8-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)
Henderson, Franklin, Starnes & Holt, P.A.
However, Appellants are now attempting to reverse their own position (and the record),
and make this very point the basis of their appeal.
There is nothing in the LDC or Administrative Code prohibiting the HEX from hearing a CUD
request, regardless of whether the PUD ordinance contains specific language allowing a CUD. In
fact, staff has previously handled similar requests in the same manner. The requested appeal is
simply a last-ditch effort to stop a nearby competitor.
In light of the foregoing, we respectfully request that the Board of Zoning Appeals deny the
appeal, consistent with the County Attorney’s recommendation.
Thank you for your time and attention to this matter, and please contact me if you need further
information.
Sincerely,
Jeff Wright
cc: Jeffrey A. Klatzkow, County Attorney
Michael Bosi, Zoning Director
Zachary W. Lombardo, Esq., Counsel for Appellants
16.K.8.e
Packet Pg. 2275 Attachment: Response of applicant Modwash - J Wright Esq. 6-8-22 (22419 : Recommendation to deny the appeal of HEX Decision No. 2022-17)