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HEX Final Decision 2022-28 HEX NO. 2022-28 HEARING EXAMINER DECISION DATE OF HEARING. INSTR 6268429 OR 6140 PG 2875 May 26, 2022 RECORDED 6/15/2022 9 15 AM PAGES 9 CLERK OF THE CIRCUIT COURT AND COMPTROLLER COLLIER COUNTY FLORIDA PETITION. REC$78 00 Petition No. PL20220000485 CUD - A request for a comparable use determination that a food pantry is comparable, compatible, and consistent with the list of permitted uses in Section 5.3 of the U.S. 41 Wiggins Pass Road Planned Unit Development(PUD),Ord.No.97- 46, as amended. The proposed use will occupy 13510 Tamiami Trail North Unit#2 which is a ±1,650 square foot commercial bay located within an existing strip mall and part of the U.S. 41 Wiggins Pass Road PUD. The PUD is at the southeast quadrant of the intersection of Tamiami Trail North and Wiggins Pass Road in Section 15, Township 48 South, Range 25 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The Petitioner,a Florida Not-for-Profit Corporation,requests a determination that a proposed food pantry is comparable in nature with the list of permitted uses in Section 5.3 of Ordinance Number 97-46, as amended, which is the governing document of the U.S. 41/Wiggins Pass Road Planned Unit Development (PUD). STAFF RECOMMENDATION. Approval with conditions. FINDINGS. 1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87 of the Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of the County Administrative Code. 2. The public hearing for this Petition was properly noticed and conducted in accordance with all County and state requirements. 3. The public hearing was conducted electronically and in-person in accordance with Emergency/Executive Order 2020-04. 4. The Petitioner and/or Petitioner's representative executed the Hybrid Virtual Quasi-Judicial Public Hearing Waiver related to conducting the public hearing electronically and in-person. Page 1 of 7 5. A Neighborhood Information Meeting (NIM), posting of a sign on the subject property, and a mailing to surrounding property owners is not required. A newspaper advertisement for the Hearing Examiner public meeting is the only notice required and was posted in the Naples Daily News on May 6, 2022. 6. The County Staff presented the Petition followed by the Petitioner and/or Petitioner's representative, public comment and then rebuttal by the Petitioner and/or Petitioner's representative. There were no objections at the public hearing. 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. 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: i. Operating hours. The record evidence and testimony from the public hearing reflects that the applicant is willing to commit to the limited operating hours shown below with the caveat that on the set days for drop-offs and distributions, hours may be extended by±1 hour should there be extenuating circumstances. Wednesday — Food drop off and donations only from 9:00 a.m. to 1:30 p.m.; and Saturday—Food drop off and donations only from 9:00 a.m. to 1:00 p.m.,. and Friday—Food distribution only from 10.00 a.m. to 1:00 p.m. Outside of the hours listed above, between Monday and Friday from 8:00 a.m. until 5:00 p.m. staff may be present to organize/pack food supplies, limited prep time for food distribution, and administrative work. By comparison, Walgreens is open from 8:00 a.m. to 10:00 p.m. and the Noodle Saigon Restaurant is open from 11:00 a.m. to 9:00 p.m. Helping Hand's hours of operation are less than other businesses in the PUD with the public's limited access to the pantry beginning after Walgreens opens and ending well before Noodle Saigon closes. 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 10th Edition is the industry standard used to determine PM Peak-Hour Trips. In the case of Help Hands, the ITE manual cannot be used as it is not open to the public during the PM Peak Hour. The ITE Manual does not contain a land use code for food pantries. To get a rough idea of what the PM Peak Hour might look like if Helping Hands was open during this time, the applicant used the trip generation rate for a small, 1,650 square foot office building(ITE 1 The Hearing Examiner's findings are italicized. Page 2 of 7 Code 712) as a proxy and compared it to the trip generation rates for a pharmacy/drugstore with drive-through and high turnover (ITE Code 881) and a high turnover sit-down restaurant (ITE Code 932) Staff added the trip generation rate for casual restaurants (ITE Code 930). The results are shown below and show that a small office building generates significantly fewer trips. ITE Land Use and Code Size (sq.ft.) Weekday PM Peak Hour Average Rate Small office building 712 1,650 6.15 Pharmacy/drugstore with drive-through 14,500 164.14 and high turnover High Turnover Restaurant 932 1,558 27.12 Casual Restaurant 933 1,000 12.55 Without the benefit of a traffic study, staff made a rough estimate of the amount of traffic resulting from the food pantry. The estimate is based on one, half-hour physical count of cars, one account provided by the story manager of the actual customers served during a three-hour distribution period, and the lack of any code enforcement related parking issues currently or with the former tenant Custom Wine Cabinets and Rooms. Fifty-two customers were served on Friday, March 11 th,for an average of 17 people per hour. During the 30-minute observation period, 11 groups entered the food pantry which equates to 22 people per hour. Helping Hands has been operating without incident. In addition, the required and provided parking for a shopping mall is calculated to accommodate myriad uses with all space available for use by patrons of the plaza. Given the above, there is sufficient parking. iii. Type of vehicles associated with the use. The record evidence and testimony from the public hearing reflects the types of vehicles that will be associated with the food pantry are the same as those that will visit the other uses in the shopping center. There will be no difference in vehicle type though trucks dropping off donations to the food pantry may be smaller in size than those that deliver to the Walgreens and potentially some of the restaurants in the shopping plaza. iv. Number and type of required parking spaces. The record evidence and testimony from the public hearing reflects that the parking requirements for shopping centers are calculated to be adequate for the various permitted uses in the shopping center. Some uses require less parking, and some require more parking. Traditionally, parking is shared equally amongst all tenants with no assigned spaces. The Site Development Plan(SDP-990162C,Attachment D)requires the PUD to provide 266 parking spaces inclusive of handicapped parking;the PUD provides 272 spaces inclusive of handicapped parking. The parking lot (50 spaces) associated with Helping Hands makes up a small portion of the total parking in the PUD. Based on the site visit, the absence of any parking related code enforcement issues, statements from Page 3 of 7 the applicant and agent, and the fact that the food pantry has already been operating, there is sufficient parking to accommodate the use in the PUD. v. Business practices and activities. The record evidence and testimony from the public hearing reflects that the typical activities in the shopping center involve customers parking their vehicles, visiting one or more of the stores, restaurants, or service providers, conducting their business, and then leaving the shopping center. Except for deliveries, all business in the plaza operate in the same manner and are indistinguishable from other businesses with respect to their impact of neighboring businesses in the plaza. Helping Hands operates in the same manner as other business though with less impact than some of the other permitted uses in the plaza. 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. The record evidence and testimony from the public hearing reflects that the effect that Helping Hands would have on neighboring business is no greater, and likely less than the impacts of any of the other businesses within the center. Noise and glare are in direct proportion to the amount of vehicular traffic which will be less than that of other uses. There may be some odors resulting from perishable food being placed in dumpsters, but this would be no different and likely less than any of the restaurants in the center discarding uneaten food and perishable food 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 comparable to and consistent with permitted uses in the PUD. The subject property has a Future Land Use Designation of Urban Residential, Mixed-Use Activity Center #20— U.S. 41 and Wiggins Pass Road in the Future Land Use Element(FLUE p. 61-63, Attachment B). Mixed-Use Activity Centers are intended to be mixed-use in character; allowable land uses include the full array of commercial uses, residential uses, institutional uses, hotel/motel uses at a maximum density of 26 units per acre, community facilities, and other land uses as generally allowed in the Urban designation. Urban designated areas on the Future Land Use Map (FL UM) are intended to accommodate community facilities and commercial uses identified by criteria in Mixed-Use Activity Center Subdistrict. 4. The proposed use shall be compatible and consistent with the other permitted uses in the zoning district, overlay, or PUD. Page 4 of 7 The record evidence and testimony from the public hearing reflects that the County uses the SIC system in classifying uses; there is not a specific SIC number for a food pantry, therefore it is not specifically listed as a permitted use in the PUD. The list of permitted uses in Ord. 97-46 includes #43 which states that, "any other general commercial use which is comparable in nature with the foregoing uses" is permitted. SIC 8351 — Child Day Care Services is a permitted use in the PUD and falls under SIC Major Group 83— Social Services which encompasses a wide range of services including social services to the disadvantaged. A food pantry and a children's daycare are similar in that they both provide a needed social service although child day care services tend to be opened a greater number of hours than Helping Hands resulting in a greater impact on other establishments in the PUD. Helping Hands provides food, and limited household and personal products. The PUD permits food stores (SIC 5411-5499), and drug stores (SIC 5912) which provide many of these same items making Helping Hands compatible and consistent with these other permitted uses. Helping Hands is a less intensive use than many of the other permitted uses in the PUD such as automotive dealers and gasoline service stations, automotive rental and repair and drug stores. Based on site visit observations, eight of the eleven "customers" of the food bank were in and out in five minutes or less signifying minimal demand on parking. Lastly, its limited hours of operation (approximately 12 hours/week, aside from administrative functions) are significantly less than most if not all other uses in the PUD. 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 the applicant believes that they have made a significantly strong case for the compatibility of the food pantry and has not provided any additional relevant information. 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 CUD-PL20220000485, filed by Patrick Vanasse,AICP of RWA Engineering representing Helping Hands Pantry, Inc.,with respect to the property as described in the U.S. 41/Wiggins Pass Road Planned Unit Development(PUD), Ordinance No. 97-46, as amended, for the following: • A determination that a proposed food pantry is comparable in nature with the list of permitted uses in Section 5.3 of Ordinance Number 97-46, as amended, which is the Page 5 of 7 governing document of the U.S.41/Wiggins Pass Road Planned Unit Development(PUD). The subject property is a ±1,650 square-foot commercial unit within the ±9.04-acre PUD located in the southeast quadrant of the intersection of Tamiami Trail North (U.S. 41) and Wiggins Pass Road in Section 15, Township 48 South, Range 25 East, Collier County, Florida. Said parking summary is fully described in the Paving and Drainage Site Plan attached as Exhibit "A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A—Paving and Drainage Site Plan LEGAL DESCRIPTION. See Ordinance No. 97-46, as amended CONDITIONS. 1. All other applicable state or federal permits must be obtained before commencement of the development. 2. Helping Hands shall coordinate with the owner of the plaza and other plaza businesses to ensure that its activities do not overload available onsite parking. If this cannot be accomplished, Helping Hands shall be required to adjust its operating hours listed in condition #3 below. 3. Hours for dropping off donation and distributing food shall be limited to those shown below with the caveat that on the set days for drop-offs and distributions, hours may be extended by± hour should there be extenuating circumstances. Wednesday— Food drop-off and donations only from 9:00 a.m. to 1:30 p.m.; Saturday—Food drop-off and donations only from 9:00 a.m. to 1:00 p.m.; and Friday—Food distribution only from 10:00 a.m. to 1:00 p.m. 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. Page 6 of 7 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. /.2.,.1--1........------- June 10, 2022 Date Andrew Dickman, Esq., AICP Hearing Examiner Page 7 of 7 EXHIBIT "A" .. .:. . 4.4..'""GGINS�ASS ROAD. T —.:.Z---ere =�•_\,j.�' - --- ...- _ �.--_r_C-_-- �__'^-`____e_i�7'.: '.:_ —1_----. -—_- . • I� �..a '� . \ I"'-\ ,T •_ivy d} _� ''.L.".�7 -'R ik t. i<-1 I• o• � .:-t::Y - .,! ;: yam,`. 4; `,' '* 1 �� ,tea ,i d.., a 1 I Q' ;l{ •I W / :1. — i� mo ' I f 'y E:-I. I .... .A: Z.Ar.A. - 11 _:r... v P...vUrN6f ..,.... n 4-1 VI I I^e.� . '�•^ :I!�c ..:;fix 1 r. 1 627-r ` �,^.. MAMA.Ru `��'...v,., : 'i........,.....• II ZOOMvAcA • I , 1 I MeaI '..........................am M ..s„+... ROTA p WIGGWS PASS CROSS NG - "'l "' *all WIGGINS CROSSING NMI SITE DEVELOPMENT PLAN(N PAVING AND DRNNAGE SRE PLAN it rri iur..rraa.�r ..,,� Ieu-o,e=e' a ,. Ivo1e=csa EXHIBIT "A"