HEX Final Decision 2023-09 (Amended)Page 1 of 3
HEX NO. 2023-09
HEARING EXAMINER DECISION
(Amending & Replacing HEX Decision 2022-55)
DATE OF HEARING.
February 9, 2023
APPEAL PETITION.
PETITION NO. ADA-PL20220004625 Motion for Reconsideration – Appeal filed by
Valencia Golf and Country Club HOA, Inc. of the administrative approvals of Planned Unit
Development Minor Change Petition PMC-PL20220003657 and Insubstantial Change to
Construction Plans ICP-PL20220003659 regarding sidewalks on private property. The
subject property is located in the Valencia Golf and Country Club – Phase 2B subdivision,
part of the Orangetree Planned Unit Development in Section 23, Township 48 South, Range
27 East, Collier County, Florida.
GENERAL PURPOSE FOR THE MOTION FOR RECONSIDERATION.
Collier County Zoning Division, Growth Management Community Development Department’s
(the “County”) Motion for Reconsideration of the Hearing Examiner’s Decision 2022-55
(“Motion”) of the appeals filed by Valencia Golf and Country Club HOA, Inc. (“Valencia HOA”)
of the administrative approvals of Planned Unit Development Minor Change Petition PMC -
PL20220003657 and Insubstantial Change to Construction Plans ICP-PL20220003659 regarding
sidewalks on private property (“Approvals”). The County is requesting the reconsideration based
on 1) the Hearing Examiner not being apprised of Attorney General Opinion 2012-32 regarding
property owner consent to a rezone; and 2) HEX Decision 2022-55 would require the County to
change its business practices by requiring consent of any and all Homeowners Associations (HOA)
where an owner of a property within a Planned Unit Development (PUD) requests an amendment
to a development order such as a PUD Ordinance or subdivision plat/plan, when the HOA has no
ownership or easement interest in the subject property.
STAFF RECOMMENDATION.
Approval.
GENERAL FINDINGS.
1. The public hearing for this Petition and Motion was properly noticed and conducted in
accordance with all County and state requirements.
2. The Motion was timely filed.
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3. The County’s Land Development Code (“LDC”) Section 8.10.00 and Ordinance 2013-25, as
amended gives the Hearing Examiner the authority to grant a rehearing on an application for
the following reasons:
• Mistake, inadvertence or excusable neglect;
• Newly discovered evidence which by due diligence could not have been discovered in
time for the original hearing; or
• Fraud, Misrepresentation, or other misconduct of an adverse party.
4. The public hearing was conducted electronically and in-person in accordance with
Emergency/Executive Order 2020-04.
5. This decision amends and replaces HEX Decision 2022-55.
ANALYSIS.
Based on the legal arguments, evidence and testimony at the public hearing and a review of the
record, the Hearing Examiner finds and concludes:
1. The Valencia HOA Appeals were filed pursuant to Section 250-58 of the Collier County Code
of Ordinances. The Appeals were heard before the HEX on November 10, 2022, and HEX
decision No. 2022-55 was rendered on December 9, 2022, granting the Appeals.
2. The Approvals are based on applications filed by Lennar Homes, LLC (“Lennar”) and Roberto
Bollt Trustee c/o Orangetree Associates (“Bollt”) through its representative Barraco and
Associates, Inc. (“Barraco”). The general purpose of the applications and subsequent
Approvals is to remove hazardous sidewalk on a few private lots that conflict with the
driveways of those lots. Lennar is the builder of the homes on the subject private lots, while
Bollt and Barraco are the PUD owner the County contacts for annual PUD monitoring
reporting requirements, pursuant to the LDC Section 10.02.13.F.
3. As correctly pointed out by the County, HEX Decision 2022-55 inadvertently mistakes the role
of the Valencia HOA in the underlying application and approval process, and HEX Decision
2022-55 conflicts with the County’s long standing business practices for such applications and
approvals.
4. HEX Decision 2022-55 inadvertently has the effect of mistakenly requiring authorization by
Valencia HOA on the subject application(s) of the underlying administrative Approvals when
no HOA real property is involved, except if the crosswalks are included. LDC Section 1.08.02
defines “Applicant” as “The owner of record of property, or his authorized agent, making an
application or other submission to Collier County for approval of development.” Based on the
County’s Motion and the record, it is clear that the applicants must be the owners of the subject
real property, and the applicant can give authorization to a representative.
5. The County correctly recognized a potential pedestrian/vehicle conflict on the subject cul-de-
sac sidewalks and made a reasonable decision to exercise its authority under the PUD minor
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change provisions in the County’s LDC. From a planning perspective, eliminating the
sidewalks in the cul-de-sac and adding a crosswalk appears logical, practical, and prudent for
pedestrian safety.
6. Based on the forgoing, the application(s) to remove the subject sidewalks on the private lots
must be made by the real property owner(s) or their authorized representative and does not
require Valencia HOA’s consent or participation. Therefore, the County Approvals are
affirmed and the Valencia HOA’s Appeals are denied.
DECISION.
The Hearing Examiner hereby GRANTS the Motion for Reconsideration of his Decision 2022-55
for Appeal Petition Number ADA-PL20220004625, filed by Collier County Zoning Division,
Growth Management Community Development Department, and issues this amended Decision,
which has the effect of affirming the County’s Approvals and denying the Valencia HOA’s
Appeals.
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 laws.
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.
________________________ ____________________________________
Date Andrew Dickman, Esq., AICP
Hearing Examiner