HEX Final Decision 2021-26HEX NO. 2021-26
HEARING EXAMINER DECISION
DATE OF HEARING.
June 24, 2021
PETITION.
PETITION NO. PDI-PL20200000231 — Request for an insubstantial change to Ordinance
Number 00-37, as amended, the Olde Cypress Planned Unit Development (PUD), to allow
for a deviation from LDC Section 4.06.02.0 which requires a 10-foot Type A Buffer where
multi -family use abuts multi -family use to instead allow a one -foot buffer yard only in the
area where the compactor enclosure and approach apron will be located at 8074 Dancing
Wind Lane within the Amberton Townhomes Development. The subject property is in the
southeast portion of the PUD on the north side of Immokalee Road, approximately 300 feet
west of Nursery Lane, in Section 22, Township 48 South, Range 26 East, Collier County,
Florida, consisting of 28.484: acres.
GENERAL PURPOSE FOR THE PETITION.
The development residents at Amberton Townhomes have experienced interactions with bears that
are foraging for food from the trash containers that are placed outside of the units for scheduled
solid waste collection. The presence of such bears within the development presents a health, safety,
and welfare hazard to the residents. It is the intent of the subject PDI to reduce the required 10-
foot buffer requirement to accommodate a common trash compactor enclosure in order to abandon
the practice of individual trash receptacles at each residence. This strategy is to decrease the
occurrences of bear -human interaction.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
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.
Page 1 of 6
4. Pursuant to LDC Section 10.03.06.H.2.a, an advertised NIM was held on May 5, 2021, at 6:30
PM at the Max Hasse Community Center, located at 3390 Golden Gate Boulevard West; said
NIM was simultaneously conducted by means of a virtual format via Zoom. As demonstrated
by the Sign -In Sheet, 13 persons attended in person and Zoom registration yields an additional
four participants; numbers exclude County and Florida Fish & Wildlife Staff.
5. 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.
6. The Petitioner and/or Petitioner's representative presented the Petition, followed by County
staff and then public comment. Several members of the public submitted objection letters and
testified in opposition at the public hearing. The Petitioner was represented by Russell M.
Ottenberg, who is a qualified land planner with Planeng, Inc. Kathleen Berkey, an attorney
with the law firm of Becker & Poliakoff, P.A., holding accreditation from the American
Institute of Certified Planners, represented the abutting community of Fairway Preserves
Condominium. Based on information presented by Mr. Ottenberg and Ms. Berkey, the two
communities have been collaborating on a private agreement that would address the objections
from Fairway Preserves Condominium. While encouraged by this, the Hearing Examiner has
no jurisdiction or authority to direct or enforce this private agreement.
7. Pursuant to the County's Land Development Code Section 10.02.13.E.1., the Hearing
Examiner may make an evaluation of an insubstantial change to an approved PUD Ordinance
and approve based on the criteria in LDC Section 10.02.13.E.l.and 2.1 That criteria and the
Hearing Examiner's findings are as follows:
a. Is there a proposed change in the boundary of the Planned Unit Development (PUD)?
The record reflects that there is no proposed change in the boundary of the PUD.
b. Is there a proposed increase in the total number of dwelling units or intensity of land
use or height of buildings within the development?
The record reflects that there is no proposed increase in the number of dwelling units
or intensity of land use or height of buildings within the development.
c. Is there a proposed decrease in preservation, conservation, recreation, or open space
areas within the development in excess of five percent (5%) of the total acreage
previously designated as such, or five (5) acres in area?
The record reflects that there is no proposed decrease in preservation, conservation,
recreation, or open space areas in excess offive percent of the total acreage previously
designated as such or five acres in area within the PUD which comprises 538.1 nacres.
'The Hearing Examiner's findings are italicized.
Page 2 of 6
d. Is there a proposed increase in the size of areas used for non-residential uses, to include
institutional, commercial and industrial land uses (excluding preservation, conservation
or open space), or a proposed relocation of nonresidential land uses?
The record reflects that there is no increase to the size of areas used for non-residential
uses, but the compactor enclosure is a new, al be it small, new use of non-residential
areas. That being said, the record reflects individual refuse receptacles will be
relocated from individual residences to the one common compactor.
e. Is there a substantial increase in the impacts of the development which may include,
but are not limited to increases in traffic generation; changes in traffic circulation; or
impacts on other public facilities?
The record reflects there are no substantial increase in the impacts resulting from this
PUD Amendment, relative to traffic generation or circulation, or on other public
facilities.
f. Will the change result in land use activities that generate a higher level of vehicular
traffic based upon the Trip Generation Manual published by the Institute of
Transportation Engineers?
The record reflects that no additional dwelling units are proposed; therefore, the
proposed PUD Amendment would not result in land use activities that generate higher
levels of vehicular traffic based upon the Trip Generation Manual published by the
Institute of Transportation Engineers. The method of collection of solid waste will
change but will not generate greater levels of vehicular traffic.
g. Will the change result in a requirement for increased stormwater retention, or otherwise
increase stormwater discharge?
The record reflects that adequate area exists on site for stormwater retention and no
change to the approved discharge rate is proposed; therefore, the proposed change
will not impact or increase stormwater retention or increase stormwater discharge.
h. Will the proposed change bring about a relationship to an abutting land use that would
be incompatible with an adjacent land use?
The record reflects that the abutting land use that potentially could have adverse
impact is the Fairway Preserves Condominium residences near the compactor
enclosure, not all the residences in that community. It is unlikely that a 10 foot Type
A Buffer between those residences and the compactor enclosure would alleviate the
objections. Based on the evidence and testimony, it is very difficult to describe the
relationship between the Petition and abutting land uses as "incompatible. "
i. Are there any modifications to the PUD Master Plan or PUD Document or amendment
to a PUD ordinance which is inconsistent with the Future Land Use Element or other
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elements of the Growth Management Plan or which modification would increase the
density of intensity of the permitted land uses?
The record reflects that the proposed changes to the PUD Document are consistent
with the FLUE of the GMP. Both environmental and Transportation Planning staff
reviewed this petition, and no changes to the PUD Document are proposed that would
be deemed inconsistent with the CCME or the Transportation Element of the GMP.
This Petition does not propose any increase in density or intensity of the permitted land
uses.
j. The proposed change is to a PUD District designated as a Development of Regional
Impact (DRI) and approved pursuant to Chapter 380.06, Florida Statues, where such
change requires a determination and public hearing by Collier County pursuant to Sec.
380.06 (19), F.S. Any change that meets the criterion of Sec. 380.06 (19)(e)2., F.S.,
and any changes to a DRI/PUD Master Plan that clearly do not create a substantial
deviation shall be reviewed and approved by Collier County under Section 10.02.13 of
the LDC.
The record reflects that the subject PUD is not a DRI.
k. Are there any modifications to the PUD Master Plan or PUD Document or amendment
to a PUD ordinance which impact(s) any consideration deemed to be a substantial
modification as described under Section(s) 10.02.13 E.?
The record reflects that the proposed change is not "substantial. "
LDC Section 10.02.13.E.2 Criteria:
Does this petition change the analysis of the findings and criteria used for the original
application?
The record reflects that the proposed changes do not affect the original analysis and
findings for the original application.
Deviation:
The petitioner is seeking one deviation from the landscape buffers requirements of the LDC. The
petitioner's justification, the County's analysis/recommendation, and the Hearing Examiner's
findings are outlined below.
Proposed Deviation A
Deviation A seeks relief from LDC Sec. 4.06.02.C, which requires a 10' Type A buffer where
multi -family use abuts multi -family use to instead allow a 1' buffer yard, however, only in the area
where the compactor enclosure and approach apron will be located. Enhanced plantings will be
Page 4 of 6
included to mitigate the reduction in buffer width. These plantings will consist of four (4)
Autograph Plants (Clusea rosea), a minimum of 5' high at planting, planted at 5'-0" on center.
The record reflects that the increased chance of bear encounters without the compactor and
without an alternative location for the compactor, finding that, in compliance with LDC section
10.02.13.A.3., the petitioner has demonstrated that "the element may be waived without
detrimental effect on the health, safety and welfare of the community" and LDC section
10. 02.13.B. 5. h the petitioner has demonstrated that the deviation is `justified as meeting public
purposes to a degree at least equivalent to literal application of such regulations. " The record
reflects frequent unfortunate bear -human encounters, at least one resulting in significant human
injury, to support the Petition. The Florida Fish and Wildlife Conservation Commission has
provided written support for this conclusion. While a complete cessation of bear -human
encounters is not likely, the record reflects that the purpose for the Petition is the logical strategy
to reduce such encounters.
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 given by the public, the Hearing Examiner finds that there is
enough competent, substantial evidence as applied to the criteria set forth in Section 10.02.13.3.1.
and 2. of the Land Development Code to approve Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition Number PDI-PL20200000231, filed by
Russell Ottenberg of Planeng, Inc. representing TEG Amberton, LLC, TEG Amberton MLA, LLC,
TEG Amberton MSR, LLC, TEG Amberton MVP, LLC and TEG Amberton WAV, LLC, with
respect to the property as described in the Olde Cypress Planned Unit Development Ordinance No.
00-37, for the following:
• An insubstantial change to Ordinance Number 00-37, as amended, the Olde Cypress
Planned Unit Development (PUD), to allow for a deviation from LDC Section 4.06.02.0
which requires a 10-foot Type A Buffer where multi -family use abuts multi -family use to
instead allow a one -foot buffer yard only in the area where the compacter enclosure and
approach apron will be located at 8074 Dancing Wind Lane within the Amberton
Townhomes Development.
Said changes are fully described in the Proposed Deviation and Plans attached as Exhibit "A" and
are subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A - Proposed Deviation and Plans
Page 5 of 6
LEGAL DESCRIPTION.
See Ordinance No. 00-37
CONDITIONS.
All other applicable state or federal permits must be obtained before commencement of the
development.
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.
July 23, 2021
Date Andrew Dickman, Esq., AICP
Hearing Examiner
Page 6 of 6
EXHIBIT "A"
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