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HEX Final Decision 2023-32HEX NO. 2023-32 HEARING EXAMINER DECISION DATE OF HEARING. September 14, 2023 PETITION. Petition No. PCUD-PL20230004883 - Hand Foot Massage & Spa (PCUD) - Request for a comparable use decision of the Hearing Examiner that a massage therapy spa business, including foot massage and spa treatments, is comparable in nature to other permitted uses in Section 5.02.A of the Berkshire Lakes Planned Unit Development (PUD) adopted by Ordinance Number 83-46, as amended. The subject property is located at 7071 Radio Road, just east of Devonshire Boulevard, in Section 32, Township 49 South, Range 26 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The petitioner is seeking a determination that a massage therapy spa offering services of massage and spa treatments performed by state -licensed massage therapists is comparable in nature to other permitted uses within the Berkshire Lakes PUD, for the permitted uses within the Commercial/Multi-Use "C-l" district. STAFF RECOMMENDATION. Approval with conditions. FTNDTNGS. 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. Per LDC Section 10.03.06.0 and the Administrative Code, the following notice procedures are required: Newspaper Advertisement prior to the advertised public hearing per F.S. § 125.66. Page 1 of 6 This requirement was satisfied by county staff on or about August 25, 2023. A Comparable Use Determination petition does not require an Agent Letter, Property Owner Notification Letter, Neighborhood Information Meeting, or the posting of a sign on the property. 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.' 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 there are no restrictions for operating hours for any allowable use within the Berkshire Lakes PUD; operating hours for business uses generally range from 7: 00 AM to 11: 00 PM or later for restaurants. ii. Traffic volume generated/attracted. The record evidence and testimony from the public hearing reflects that the applicant has submitted a Traffic Impact Analysis, dated March 9, 2023, using the Institute of Transportation Engineers (ITE) Trip Generation Manual, 11 th Edition and ITR Trip Generation Handbook, 3rd Edition. For trip generation purposes, "hair salon " was used as the highest and best use as the ITE provides no data for a massage and spa treatment business. Said report concludes the proposed use is less intensive when compared to the existing conditions. iii. Type of vehicles associated with the use. The record evidence and testimony from the public hearing reflects that the vehicles used to visit the massage and spa treatment business will be the same passenger -type automobiles that frequent the other businesses within this shopping center. Deliveries will, for the most part, be by common courier. iv. Number and type of required parking spaces. The record evidence and testimony from the public hearing reflects that Parking requirements for shopping centers are set by LDC section 4.05.04, Table 17, and are deemed adequate for the various permitted uses within such shopping centers. Some uses require less parking, and some require more parking. Traditionally, parking is shared 'The Hearing Examiner's findings are italicized. Page 2 of 6 equally amongst all tenants with no assigned spaces. Parking is typically evaluated at the time of permitting. The subject unit is located within the Berkshire Lakes Shopping Center, which received development approval in conjunction with Site Development Plan (SDP) No. SDP 89-242, as amended. The most current approved site plan is SDPI- PL20210000851, which reveals the site presently has excess parking available. 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 proposed massage therapy spa business, including foot massage and spa treatments, will take place entirely within the confines of the 1,200-square foot unit. The proposed business will have no greater impact than any other business at this location. 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 subject property is within the Urban Mixed -Use District, Urban Residential Subdistrict, as identified on the Future Land Use Map (FL UM) of the Future Land Use Element (FL UE). The purpose of the Urban Mixed -Use District, Urban Residential Subdistrict, is to provide for various residential and non-residential developments such as PUDs. The proposed uses are not explicitly prohibited and are deemed consistent as the uses are comparable to others permitted by right within the commercial component of the PUD. 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 applicant has demonstrated that the proposed use (massage therapy spa business, including foot massage and spa treatments) is consistent with those listed as being allowable within the Commercial/Multi-Use "C-1 " component of the Berkshire Lakes PUD: i. Barber and beauty shops, ii. Laundries — self-service, iii. Shoe repair, iv. Tailor shops, and v. Upholstery shops 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 as per the Berkshire Lakes PUD Master Plan, the subject shopping center is located fully within the PUD's Commercial/Multi-Use "C-I " component, for which permitted principal and Page 3 of 6 accessory uses are detailed within section 5.02 of the PUD document. The Berkshire Lakes PUD, Ordinance 83-46, has been amended ten times since its initial approval; however, with the exception of adding self -storage as a permitted use — subject to conditions — all other uses remain as initially approved. Staff notes that the County uses the Standard Industrial Classification Manual, 1987 Edition, published by the Executive Office of the President, Office of Management and Budget, to establish uses within straight zoning districts. The subject PUD pre -dates this manual, and SIC classifications are not used within it. Were SIC classifications to have been used, the proposed business could be classified in two ways. The first is SIC 7299 — Miscellaneous Personal Services, which includes explicitly "massage parlors, " and the second is SIC 8049 — Offices and Clinics of Health Practitioners, Not Elsewhere Classified. The latter is primarily used for businesses offering therapeutic massage by licensed professional massage therapists, whereas the former would be used for any other type of massage business. The County uses a pyramidal zoning system; SIC 8049 is permitted within the Commercial Professional and General Office District (C-1), and SIC 7299 is first allowable within the General Commercial District (C-4). Massage businesses are stigmatized and often mischaracterized as the result of illegal activity, thus requiring a more intense zoning district, typically further away from residential communities. The Collier County Sexually Oriented Business (SOB) Ordinance, Ord. 91-083, provides the following definition within Section 4: • Physical Culture Establishment means any establishment that offers, provides, or advertises massage, body rubs, or physical contact with specified anatomical areas, regardless of whether or not the establishment has received a sexually oriented business permit under this Ordinance. Establishments that routinely provide medical services by state -licensed medical practitioners, electrolysis treatment by permitted operators of electrolysis equipment, and massage by licensed massage therapists shall be excluded from the definition of adult physical cultural establishments. It is not the intent of this Ordinance to regulate matters of massage establishments. It is not the intent of this Ordinance to regulate matters of massage establishments. These matters are regulated by the Department of Professional Regulation, Board of Massage, and by State law, Chapter 480, Florida Statutes. The intended use is a massage therapy spa to include foot massage and spa treatments performed by licensed massage therapists. The massage treatments will be performed in an open area with no private rooms or booths. Given this information, zoning staff concludes that the proposed business does not satisfy the definition of a "Physical Culture Establishment" as contemplated within the SOB Ordinance. • Compatibility is defined within the LDC as follows: "A condition in which land uses, or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted Page 4 of 6 directly or indirectly by another use or condition. " Compliance with the LDC architectural and landscape requirements, in combination with applicable PUD development regulations, assists in ensuring compatibility. • The applicant believes that they have made a significantly strong case for the compatibility of the massage therapy spa business, including foot massage and spa treatments, 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. nF C'ISI0N. The Hearing Examiner hereby APPROVES Petition Number PCUD-PL20230004883, filed by Francesca Passidomo, Esq. of Coleman, Yovanovich & Koester, P.A. representing the applicant, Tom B. J. Zou of TZ Dragon LLC, and the Owner, REG8 Berkshire Commons, LLC with respect to the property as described in the Berkshire Lakes Planned Unit Development (PUD) adopted by Ordinance Number 82-1, as amended, located at a 1,200± square foot leasable unit located within the Commercial/Multi-Use "C-l" component of the PUD; specifically, 7071 Radio Road, in Section 32, Township 49 South, Range 26 East, Collier County, Florida, for the following: • A request for a comparable use determination that a massage therapy spa business, including foot massage and spa treatments, is comparable in nature to other permitted uses in section 5.02.A of the Berkshire Lakes Planned Unit Development (PUD) adopted by Ordinance No. 83-46, as amended. Said changes are fully described in the proposed Site Development Plan attached as Exhibit "A" and are subject to the condition(s) set forth below. ATTACHMENTS. Exhibit A — Site Development Plan LEGAL DESCRIPTION. See Ordinance Number 82-1, as amended, located at a 1,200± square foot leasable unit located within the Commercial/Multi-Use "C-l" component of the PUD; specifically, 7071 Radio Road, in Section 32, Township 49 South, Range 26 East, Collier County, Florida Page 5 of 6 CONDITIONS. 1. All other applicable state or federal permits must be obtained before commencement of the development. 2. State -licensed massage therapists will perform massage and spa treatments. 3. Other than public restrooms, custodial closets, a business office, and an employee break room, there shall be no other private rooms or booths within the confines of this business location. 4. This Comparable Use Determination shall not negate the requirement to obtain and abide by the requirements of a Sexually Oriented Business Permit if it is found to be operating in such a manner that it is determined to be operating as a Physical Culture Establishment. 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. Date Andrew Dickman, Esq., AICP Hearing Examiner Page 6 of 6 EXHIBIT "A" "fir C= Reviewed and Approved For: Permit Issuance PL20210000851 Dat. 512112021 BERKSHIRE COMMONS 7163 RADIO ROAD. - NAPLES, FL 34104 FIRST WATCH' THE DAYTIME CAFE APPLIGNr CONTACT INFORMATION GENERAL NOT® PROJWT DEBCPAPnM [p30 p� RSRT C6 TIE PROSCf ° AV INSUeefANGAL LHANtE 10 APPRpvpulE 9W Of LP .—It ffATRG fOR AN EASIIIL R¢iAURWi. RwM[. 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