HEX Final Decision 2019-07 HEX NO. 2019-07
HEARING EXAMINER DECISION
PETITION NO. PL20180002744 — Robert Mulhere, FAICP, as agent for Hah Yo Kee
Investments,LLC, requests affirmation of a zoning verification letter issued by the Planning
and Zoning Division pursuant to LDC Section 10.02.06, in which County staff determined
that the proposed use of a child care center(SIC 8351) subject to certain stipulations relating
to hours of operation and student population,is comparable in nature to those uses permitted
for Tract H, as described in Section 3.3 of the Harvest for Humanity PUD, Ordinance No.
99-80 and Ordinance No. 2007-59, as amended. The subject property is located in the
southeast quadrant of Carson Road and Lake Trafford Road, in Section 32, Township 46
South, Range 29 East, Collier County, Florida.
DATE OF HEARING: January 24, 2019
STAFF RECOMMENDATION: Approval.
FINDINGS:
1. The Hearing Examiner has jurisdiction to hear this matter pursuant to Section 2-87 of the
Code of Laws and Ordinances, and Section 3.G.6. of the Administrative Code for Land
Development.
2. Based on the applicant's written petition, testimony at the hearing of the applicant and the
public, and the recommendation of staff, the Hearing Examiner finds that the criteria set
forth in Section 10.02.06.J of the Land Development Code has been met and the petition
should be approved.
ANALYSIS:
Prior to the hearing date, staff had received no objections to this application and at the required
Neighborhood Information Meeting, no objections were noted. Members of the public did attend
this hearing and one member of the public expressed concerns with this application.
The property is zoned Planned Unit Development (PUD) with a mix of residential and non-
residential uses. The residential part of the PUD is developed. Not all non-residential uses have
been built.
The applicant has requested that a child care center be found comparable and compatible to uses
allowed in this PUD for Section III: Tracts G, H and J, "Education Institution/College Learning
Site." The permitted principal use in these tracts is described as "College, Universities and
Professional Schools furnishing academic courses and granting academic degrees (SIC Group
8221), limited to a maximum of degree and non-degree student population of eighty (80) in any
term." County staff has found that the proposed use, child care center, is similar to the allowed
[18-CPS-01835/1458763/1126 1 of 3
uses as both have an educational component and assembly type of occupancy and both use
qualified teachers. Child care centers are permitted within all County commercial zoning districts,
and Colleges, Universities and Professional Schools are allowed as conditional uses in the C-3
zoning district and as principle uses in the C-4 and C-5 zoning districts, all of which supports
compatibility with many other permitted uses within those districts. Similarly, this comparison
would apply to PUDs that allow the same uses. A Trip Generation Analysis was provided by the
Applicant that concluded the proposed use is less intense when compared to the uses allowed by
the PUD.
The applicant's use will not exceed the maximum of 80 students as permitted in this section of the
PUD, and the applicant further agrees to limit their hours of operation for child care to less than
that allowed within the PUD for similar allowed uses.
Members of the public were in attendance and one speaker questioned the use of the existing
playground and common elements, traffic, interaction with the gated entry and a request to
postpone the decision until after the neighborhood organization had a meeting.
In response, the applicant noted that the playground and common areas are not impacted by this
request and not part of the parcels involved. The applicant stated the existing building involved
with their application is one formerly owned by Hodges University and not one of the common
elements. The applicant is aware of the gated system and their operation would generally have
most students dropped off before 9 AM and picked up between 3-5:30 PM; with these general
hours they do not anticipate a problem with the gate system. Traffic, as noted in the traffic
generation analysis, will produce less traffic than the listed PUD uses. The applicant agreed to a
trip generation cap, as included in their traffic analysis. During their presentation, the applicant
noted they have met with the neighborhood association and have an approved agreement with the
association for this use.
DECISION:
The Hearing Examiner hereby approves Petition No. PL20180002744, filed by Robert Mulhere,
FAICP,of Hole Montes, Inc.,representing Hah Yo Kee Investments, LLC„requesting affirmation
of a zoning verification letter determining that the proposed use of a child care center(SIC 8351)
subject to certain stipulations relating to hours of operation and student population, is comparable
in nature to those uses permitted for Tract H, as described in Section 3.3 of the Harvest for
Humanity PUD, Ordinance No. 99-80 and Ordinance No. 2007-59, as amended, on the property
described herein, and affirms staff's determinations as stated in the Zoning Verification Letter
attached as Exhibit"A", subject to the condition(s) set forth below.
ATTACHMENTS: Exhibit A - Zoning Verification Letter ZVL—PL20180002744
LEGAL DESCRIPTION:
Tracts D, G, H and J, of the JUBILATION SUBDIVISION PLAT, according to the plat thereof,
as recorded in Plat Book 37, Pages 4 through 7, of the Public Records of Collier County, Florida.
[18-CPS-01835/1458763/1]26 2 of 3
CONDITIONS:
1. All other applicable state or federal permits must be obtained before commencement of the
development.
2. Maximum weekday traffic trip generation is limited to 61 AM peak hour and 60 PM peak
hour trips.
3. Child care hours of operation are limited to 7 AM to 8 PM.
4. Child care is limited to a maximum of 80 students in any term, which counts toward the
maximum 80 student limitation for permitted uses in Section 3.3A the PUD. Under no
circumstances shall the combined maximum number of students exceed 80 for all uses in
Section 3.3A of the PUD.
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. Pursuant to Ordinance 2013-25, as
amended, a Hearing Examiner Decision may be appealed to the Board of County Commissioners
or the Board of Zoning Appeals, as appropriate. Appeals must be filed within 30 days of the date
the Hearing Examiner Decision is rendered.
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 'K - t9 tilt
Date Ma Strain, Hearing Examiner
Appro d as t form and legality:
k
Scott A. Stone
Assistant County Attorney
[18-CPS-01835/1458763/1126 3 of 3
ifrCo �r County
Growth Management Department
Zoning Services Section
December 7, 2018
Robert Mulhere, FAICP
Hole Montes, Inc.
950 Encore Way
Naples, FL 34110
Re: Zoning Verification Letter ZLTR (CUD)-PL20180002744; Zoning Verification Letter —
Comparable Use Determination for 1170 Harvest Drive, AKA: Jubilation Tact H, in Section 32,
Townships 46 South, Range 29 East, of unincorporated Collier County, Florida. Property ID/Folio
Numbers: 52658000442(+1.02 acres)and 52658000455(+0.34 acres).
Dear Mr. Mulhere:
This letter is in response to a Comparable Use Determination (CUD) Application that was submitted on
the behalf of your client, Hah Yo Kee Investments LLC, on behalf of The Guadalupe Center. You
specifically request a determination from the Planning Manager and approval from the Office of the
Hearing Examiner, that a Child Care use(SIC 8351), limited to a maximum student population of eighty
(80) degree and non-degree students in any term, is comparable and compatible with the permitted
principal uses listed as being allowable within Tract H of the Harvest for Humanity PUD, and thereby
establishing said use to be an allowable permitted use by means of comparability. Accordingly, you have
provided a professional zoning analysis and a traffic impact analysis.
The applicable ordinance regulating the zoning and use of the subject property is the Collier County Land
Development Code (LDC), Ordinance 04-41 as amended; the LDC implements the goals, policies and
objectives of the Collier County Growth Management Plan (GMP). The subject property is within the
High Residential Land Use Designation as identified on the Immokalee Future Land Use Map (IFLUM),
an element of the Immokalee Area Master Plan (TAMP) of the GMP. The current Official Zoning Atlas,
an element of the LDC, reveals the subject property has a zoning designation of Planned Unit
Development (PUD), more specifically, the Harvest for Humanity PUD, Ordinance 99-80, as amended.
The subject properties are located within and encompass"Tract H"as identified on the PUD Master Plan;
said tract is allocated as "Education/College Learning Site" and comprises 1.36 acres. is located within
Said Zoning Atlas yields no overlays, variances, or other special exceptions applicable to the subject
property. Applicable CUD regulations are contained in sections 2.03.00.A and 10.02.06.J of the LDC.
Allowable permitted and accessory uses within Tract H of the Harvest for Humanity PUD are detailed
within PUD Section 3.3, Permitted Uses — Tracts G, H and J. As per Section 3.3.A Permitted Principal
Uses are limited to the following: Colleges, Universities and Professional schools furnishing academic
courses and granting academic degrees (SIC Group 8221), limited to a maximum of degree and non-
degree student population of eighty (80) in any term." Allowable accessory uses are contained within
Section 3.3.13 and includes the following: Collier County Voter Polling Place (optional),
Maintenance/Storage Buildings, Parking, Gazebo/Band Shell/Pavilion, and "Any other use which is
comparable in nature with the foregoing list of permitted accessory uses as determined by the Board of
EXHIBIT A
,,, �,- 1 of 7
Zoning Division•2800 North Horseshoe Drive•Naples.FL 34104•239-252-2400•www.colhergov.net
Zoning Verification Letter
/LTR(CUD)-PL20180002744
Page 2 of 3
Zoning Appeals (BZA); petitions of this type are now typically heard by the Office of the Collier County
Hearing Examiner. The applicant argues that accessory uses are a sub-classification of permitted uses and
that it is therefore the intent of both the LDC and the subject PUD to allow the comparable use provision
to be applied to principal uses within this PUD;staff has no reason to disagree.
With respect to allowable permitted uses, both the LDC and the subject PUD incorporate The Standard
Industrial Classification (SIC) Manual — 1987 for the purposes of clarification and specificity. The
following SIC classifications are applicable to the subject petition:
• 8221—Colleges, Universities, and Professional Schools: Colleges, universities,and professional
schools furnishing academic courses and granting academic degrees. The requirement for
admission is at least a high school diploma or equivalent general academic training. Included
within a list of auxiliary uses are: Colleges, except junior; Professional schools: e.g., dental,
engineering, law, medical; Seminaries, theological; Service academies (college); Theological
seminaries;and Universities.
• 8351 — Child Day Care Services: Establishments primarily engaged in the care of infants or
children, or in providing pre-kindergarten education, where medical care or delinquency
correction is not a major element. These establishments may or may not have substantial
educational programs. These establishments generally care for prekindergarten or preschool
children, but may care for older children when they are not in school. Establishments providing
babysitting services are classified in Industry 7299. Head Start centers operating in conjunction
with elementary schools are classified in Industry 8211. Included within a list of auxiliary uses
are: Child care centers; Day care centers, child; Group day care centers, child; Head Start
centers,except in conjunction with schools;Nursery schools;and Preschool centers.
Your Comparable and Compatible Analysis addresses three components. You indicate that the SIC
classifications of the approved use(SIC 8221)and the proposed use (SIC 8351)are similar in function in
that both uses have an educational component and an assembly like occupancy; both uses use qualified
teachers. Additionally, you indicate that Child Day Care Services You further note that SIC 8221 is
allowable as a Conditional Use within the Counties C-3 straight zoning designation and as an allowable
permitted use within the C-4 and C-5 zoning districts; whereas, SIC 8351 is an allowable permitted use
within CI through C-5 zoning districts. Furthermore, you contend that the proposed child care will use
the existing facilities in a similar fashion to the manner of use as the former university use. Lastly, you
have provided a professional Trip Generation Analysis that indicates the proposed use is less intense than
the existing allowable use. Lastly, you conclude, that the proposed use is therefore comparable and
compatible with the listed permitted uses and that no deviations from the PUD conditions are warranted
or requested.
It is staff's understanding that postsecondary education activities commenced between 200 and 2009:
however, have since ceased. It is further understood by staff that all Development Commitments
contained within PUD Section 7.2, with exception to D (hours of operation) and F (maximum student
population), have previously been satisfied or would no longer be applicable. With respect to PUD
Section 7.2.D., the normal hours of business shall be limited to 7:00 a.m. to 10 p.m. and holidays and
weekends 5:00 a.m. to 7:00 p.m. The entry gate to the Jubilation subdivision shall control access to the
facility after 8:00 p.m. With respect to PUD Section 7.2.F.,the applicant has stipulated that the maximum
student population for both degree and non-degree students in any term shall not exceed eighty (80)
students. It is further stipulated that this limitation is applicable to Tracts G, H, and J. Although the
comparable use request is specific to Tract H, the total student population (degree and non-degree) is
applicable to Tracts G, H and J, both in whole and in part.
EXHIBIT A
2 of 7
Zoning Verification Letter
ZLTR(CUD)-PL20180001744
Page 3 of 3
The Zoning Manager has reviewed the subject application and submittal documents and finds the
argument made to be compelling. Based upon the information contained herein, it has been concluded
that a Child Day Care center(SIC 8351) is comparable and compatible to those uses listed as allowable
permitted uses on Tract H of the Harvest for Humanity PUD,as amended,subject to the stipulations made
herein with respect to hours and student population. This determination must be affirmed by the Hearing
Examiner to become valid;you will be notified of a hearing date and time.
Disclaimer: 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. All other applicable state or federal permits must be obtained before commencement of the
development.
Please be advised that the information presented in this verification letter is based on the Collier County
LDC and/or Growth Management Plan in effect as of this date. It is possible that subsequent
amendment(s) to either of these documents could affect the validity of this verification letter. It is also
possible that development of the subject property could be affected by other issues not addressed in this
letter, such as, but not limited to, concurrency related to the provision of adequate public facilities,
environmental impact,and other requirements of the Collier County LDC or related ordinances.
Should you require additional information or have any questions, please do not hesitate to contact me at
(239)252-5719 or e-mail: john.kelliercountyfi.gov.
Researched and prepared by: Reviewed by:
Jo A. K- y, Senior Planner Rayrnon ellows,Zoning Manager
Zoning Services Section Zoning ryices Section
C: GMD-Addressing Section
EXHIBIT A
3 of 7
Page 1 of 1
Collier County Property Appraiser
Property Summary
1170Site Zone 34142
Parcel No 52658000442 Site Address HARVEST DR Site City IMMOKALEE •NotE
Name/Address HAH YO KEE INVESTMENTS LLC
8101 RICHARDSON RD#101
City COMMERCE TWP State MI Zip 48390
Map No. Strap No. Section Township Range Acres *Estimated
1E32 431650 H 11E32 32 46 29 1.02
Legal JUBILATION TRACT H LESS THAT PORTION AS DESC IN OR 4321 PG 3601
Millage Area,• 5 Millage Rates• `Calculations
Sub./Condo 431650 - JUBILATION School Other Total
Use Code• 35 -TOURIST ATTRACTIONS 5.049 9.7271 14.7761
Latest Sales History 2018 Certified Tax Roll
';I lot all Sates are listed due to Confidentiality) `>ut;ect •;u
Date Book-Page Amount Land Value S 2,550
11/14/14 5094-2725 S 842,300 (+) Improved Value S 750,695
07/27/07 4263-1398 S 452,200
03/08/02 2995-1651 S 0 (_) Market Value S 753,245
(=) Assessed Value S 753,245
(=) School Taxable Value S 753,245
(=) Taxable Value S 753,245
If all Values shown above equal 0 this parcel was created after the Final Tax Roll
EXHIBIT A
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Collier County Property Appraiser
Property Summary
Parcel No 52658000455 Site Address Site City Site Zone
Note
Name/Address HAH YO KEE INVESTMENT LLC
8101 RICHARDSON ROAD STE 101
City COMMERCE TWNSHP State MI Zip 48390
Map No. Strap No. Section Township Range Acres 'Estimated
1E32 431650 H 1.11E32 32 46 29 0.34
Legal JUBILATION THAT PORTION OF TRACT H AS DESC IN OR 4321 PG 3601
Millage Area• 5 Millage Rates• 'Calculations
Sub./Condo 431650-JUBILATION School Other Total
Use Code• 70- VACANT INSTITUTIONAL 5.049 9.7271 14.7761
Latest Sales History 2018 Certified Tax Roll
INot al,Sales are listed due to Confidentialityy a»o?c y to
Date Book-Page Amount Land Value S 850
11/22/16 5344-3429 S 0 (+) Improved Value S 0
01/17/08 4321-3601 S 0
(=) Market Value S 850
(_) Assessed Value S 850
(=) School Taxable Value S 850
(_) Taxable Value $850
If all Values shown above equal 0 this parcel was created after the Final Tax Roll
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