HEX Final Decision 2019-16 HEX NO. 2019— 16
HEARING EXAMINER DECISION
PETITION NO. CUD-PL20180000209 — Toll Gate Naples, 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 beauty salon
(SIC 7231, except beauty and cosmetology schools) is comparable in nature to those
commercial uses permitted in Section 3.3 for Parcel "A" of the Tollgate Commercial
Center PUD, Ordinance No. 92-10, as amended. The subject property is located on the
north side of Beck Boulevard, just east of Collier Boulevard, in Section 35, Township 49
South, Range 26 East, Collier County, Florida.
DATE OF HEARING: March 28, 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
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:
No members of the public other than the applicant's representatives attended this meeting and
staff has received no opposition for this application.
DECISION:
The Hearing Examiner hereby approves Petition No. ZVL (CUD)—PL20180000209, filed by
Robert J. Mulhere, FAICP, of Hole Montes, Inc., representing Toll Gate Naples, LLC, requesting
approval of a zoning verification letter determining that the proposed use of a beauty salon (SIC
7231, except beauty and cosmetology schools) is comparable in nature to other permitted
commercial uses in Parcel "A" under Section 3.3 of the Tollgate Commercial Center PUD,
Ordinance No. 92-10, 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.
[19-CPS-01855/1468824/1]38 1 of2
ATTACHMENTS: Exhibit A - Zoning Verification Letter ZLTR (CUD)—PL20180000209
LEGAL DESCRIPTION:
Units 701, 702, 722, 723 and 724, Building 7 Tollgate Business Park III Condominium,
according to the Declaration of Condominium thereof as recorded in Official Records Book
4042, page 998, of the Public Records of Collier County, Florida.
CONDITIONS:
1. All other applicable state or federal permits must be obtained before commencement of
the development.
2. The property or business owner(s) must obtain a Zoning Certificate demonstrating that
sufficient parking exists to support this use prior to obtaining building permits for the build-out
of the proposed use and before establishing occupancy within any unit(s) pursuant to this zoning
action.
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.
Li -- 1 °) (P 41 ,
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Date Mark .train, Hearing Examiner
Approf. . -.f _ and legality:
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Scott '• . Stone
Assistant County Attorney
[19-CPS-01855/1468824/1]38 2 oft
/fr. Exhibit "A"
l I qty Page 1 of 3
Growth Management Department
Zoning Services Section
January 15,2019
Robert J.Mulhere,FAICP, VP
Hole Montes,Inc.
950 Encore Way
Naples,Florida 34110
Re: Zoning Verification Letter ZLTR (CUD)-PL20180000209; Zoning Verification Letter —
Comparable Use Determination for 3845 Beck Boulevard; AKA: Toll Gate Commercial Center Phase 2,
Tract 7, Tract 8 and Tract 9, in Section 35,Township 49 South, Range 26 East,of unincorporated Collier
County,Florida. Property ID/Folio Number: 76885050403.
Dear Mr.Mulhere:
This letter is in response to a Comparable Use Determination (CUD) Application that you submitted on
the behalf of your client,Toll Gate Naples,LLC.You specifically seek a determination from the Planning
Manager and affirmation from the Office of the Hearing Examiner, that the use of beauty shops (SIC
7231, except for beauty and cosmetology schools) is comparable and compatible with the permitted uses
in the Tollgate PUD.
As per the Future Land Use Map (FLUM), an element of the Collier County Growth Management Plan
(GMP), the subject property is located within an area identified as an Interchange Activity Center;
specifically,Activity Center#9.The applicable ordinance regulating the zoning and use of the property is
the Collier County Land Development Code(LDC), Ordinance 04-41 as amended;the LDC implements
the goals,policies and objectives of the GMP. The current official zoning atlas,an element of the Collier
County Land Development Code(LDC),Ordinance 04-41,as amended,reveals the subject property has a
zoning designation of Planned Unit Development (PUD); specifically, the Tollgate Commercial Center
PUD, Ordinance 92-10, as amended. The PUD Ordinance serves to amend the LDC with respect to
zoning issues and is the governing zoning regulation for the subject property. Applicable CUD
regulations are contained in sections 2.03.00.A and 10.02.06J of the Collier County Land Development
Code(LDC),Ordinance 04-41,as amended.
As per the most current PUD Master Plan,see amending Ordinance 17-15,the subject property is located
within Parcel A. Parcel A corresponds to Section III of the PUD document, the Commercial Areas Plan.
Section 3.2 of the PUD reveals that development within Tract A is intended to be used for commercial
purposes serving the motoring public using Interstate I-75 as well as to provide limited commercial goods
and services of an area-wide nature for the Naples,Marco Island, Golden Gate and the Immokalee urban
areas. Allowable permitted and accessory uses applicable to the subject property are those contained
within PUD section 3.3, Commercial Uses, and those listed within section 3.3.1, Institutional Uses;
development standards are contained within section 3.4.
The subject property received development approval using the County's Site Development Plan (SDP)
approval process;specifically, SDP-2004-AR-6260, as amended,Tollgate Business Park Three. Said SDP
.
0�
Zoning Division•2800 North Horseshoe Drive•Naples,FL 34104•239-252-2400•www.colliergov.net
Zoning Verification Leiter
ZLTR(CUD)-PL20180000209 Exhibit "A"
Page 2 of 3 Page 2 of 3
reveals approval for a unified development of+/-4.59 acres including two buildings;Building 8(Phase II)
being located on the subject property, parking and Building 7 (Phase I) being located on an adjoining
property. The most current approved site plan, SDPI-PL20090000724, demonstrates both buildings have
retail and office space and that the required parking was established using the combined values for retail
uses, retail storage, and office uses only. Staff recognizes that there is a shared parking agreement in
effect by and between the controlling interests of both properties,OR 4992 PG 2583-2593.
The applicant contends that although Beauty Salons (SIC 7231, except for beauty and cosmetology
schools) are not listed as being an allowable permitted use in Parcel"A,"within either the commercial or
the institutional components in Parcel "A" of the PUD, that shopping centers are a listed permitted use;
and since beauty salons are often located within shopping centers, they should be allowed. It is further
argued that the subject location satisfies the LDC's definition of a shopping center,which reads,in part:A
group of unWed commercial establishments built on a site which is planned, developed, owned or
managed as an operating unit and related in its location, size, and type of shops to the trade area that the
unit serves. It consists of eight or more retail business or service establishments containing a minimum
total of 20,000 square feet of floor area... Furthermore, nothing contained within the PUD or the LDC
states what specific uses are allowable within a shopping center. The applicant further asserts that a
beauty salon is less intense that other business types allowable and bases this assertion on a traffic impact
analysis. Said analysis was performed using the ITE Trip Generation Manual, 10th Edition, and fmds the
average peak weekday trip generation for a hair salon (ITE land use 918) is 1.45 trips per 1,000 square
feet of gross floor area,whereas the average weekday PM trip generation for quality restaurant(ITE land
use 931) is 7.80 trips per 1,000 square feet of floor area. It is stated that quality restaurant was chosen for
comparison as it has the lowest trip generation compared to other small-scale service uses allowable
within the PUD.
Zoning staff has evaluated the applicant's analysis and finds that the developer did not design the subject
development as a shopping center; rather, it was designed as a business park, as is substantiated by the
parking tabulation that was provided as part of the Site Development Plan(SDP)process(SDP-2004-AR-
6260, as amended). LDC Section 4.05.04 G., Table 17, provides a specific parking requirement for
shopping centers which is not based upon individual uses; using a shopping center ratio results in a
parking requirement exceeding the quantity provided. As the property was developed for retail and office
space, individual uses are analyzed for required parking purposes. The applicant was challenged on the
issue of parking and it was determined that the subject CUD is for a proposed beauty salon of 2,000
square feet in which three haircutting chairs, two nail stations, and one permanent make-up station are
proposed, and for which +1-14.5 parking spaces would be required. As based upon a parking analysis
provided by the applicant, the office/retail unit in question is afforded +/-6.8 parking spaces as per the
approved SDP, which results in a deficit of 7.7 parking spaces. The applicant argues that the parking
deficit should not be taken into consideration, as a CUD is based upon uses and not SDP requirements.
The applicant suggests the parking deficit will be off-set, as it is reasonable to assume that the mix of
office and retail uses will result in some internal capture with employees walking to adjacent retail.
Staff's analysis finds that the business and operational characteristics of a Beauty Shop(SIC 7231,except
for beauty and cosmetology schools) are comparable and compatible to those permitted and accessory
uses enumerated within the Commercial and Institutional elements of the PUD's Commercial Areas Plan.
Said analysis is based upon the term "compatibility" which is defined in 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 directly or indirectly by
another use or condition." The term "comparable" is generally defined as having features in common
with something else or having equivalent or similar attributes. With respect to commercial zoning, the
LDC uses a cumulative system that comprises five districts. Staff concludes that as Beauty Salons (SIC
7231, except for beauty and cosmetology schools)are allowable within the Commercial Professional and
General Office District(C-1)zoning district,the least intense of the five commercial zoning districts,they
Zoning Verification Letter
ZLTR(CUD)-PL20180000209 Exhibit "A"
Page 3oJ3 Page 3 of 3
are allowable in all commercial zoning districts unless expressly prohibited. Additionally, staff concurs
that such businesses are commonly found within shopping centers which are listed as being a permitted
use within this PUD. With respect to intensity,staff doesn't disagree with the applicants parking analysis;
however, staff believes that required parking is also a measure of intensity and cannot be overlooked.
Staff herewith concludes that a Beauty Salon (SIC 7231, except for beauty and cosmetology schools) is
comparable and compatible, provided sufficient parking exists to support the use as proposed at the time
of permitting and/or issuance of a Zoning Certificate, which is required of all businesses operating within
Collier County. Staff notes that the applicant may consider reducing the intensity of the proposed
business by limiting the number of hair cutting chairs, or may pursue an Administrative Parking
Reduction(APR)if justified and warranted.
The Zoning Manager has reviewed the subject application and submittal documents and finds the
arguments made to be compelling. Based upon the information contained herein, it has been concluded
that a Beauty Salon(SIC 7231, except for beauty and cosmetology schools)is comparable and compatible
to permitted uses within Tract "A" of the Commercial Area of the Tollgate Commercial Center PUD.
This determination must be affirmed by the Office of 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.kelly@colliercountyfl.gov.
Researched and prepared by: Reviewed by:
7V1-------"-----
Jo A. elly, Senior Planner Raymond:ellows,Zoning Manager
Zoning Services Section Zoning ' rvices Section
C: GMD-Addressing Section
GMD-PUD Monitoring