HEX Final Decision 2021-42HEX NO. 2021-42
HEARING EXAMINER DECISION
DATE OF HEARING.
September 9, 2021
PF.TITI"N
PETITION NO. PDI-PL20210000379, Baumgarten PUD Founder's Request for an
insubstantial change to Ordinance No. 19-11, as amended, the Baumgarten Mixed Use
Planned Unit Development (MPUD), Exhibit B, Section I, Mixed -Use Development
Standards, by decreasing the required minimum yard setback from the Eastern Project
Boundary from 50 feet to 25 feet, removing the applicable provision that any building
exceeding 50 feet in height shall increase its setback by one foot for each one feet exceeding
50 feet of zoned height from the eastern PUD boundary, and limiting the maximum height
of principal structures within 50 feet of the Eastern Project Boundary to 35 feet zoned height
and 45 feet actual height, located at the southeast quadrant of Immokalee Road (CR 846)
and Collier Boulevard (CR 951) in Section 26, Township 48 South, Range 26 East, Collier
County, Florida
GENERAL PURPOSE FOR THE PETITION.
An Insubstantial Change to amend Exhibit B, Section 1, Mixed -Use Development Standards by
changing the minimum yard requirement from the eastern project boundary as follows:
• Setback to the eastern project boundary reduced from 50 feet to 25 feet;
• Removal of the provision that any building exceeding 50 feet in height increase
its setback to the eastern project boundary by one foot for each foot exceeding
50 feet of zoned height; and
• Limits the maximum height of principal structures within 50 feet of the eastern
project boundary to 35 feet zoned height and 45 feet actual height.
STAFF RECOMMENDATION.
Approval with conditions.
FINDINGS.
1. 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.
Page 1 of 6
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. The Petitioner and/or Petitioner's representative presented the Petition, followed by County
staff and then public comment. There a letter of objection submitted on August 11, 2021, by
counsel for the Bent Creek Preserve Homeowners Association, Inc. Counsel did not attend the
hearing nor present evidence or testimony. A few other residents from the adjacent residential
area testified in opposition.
6. The Neighborhood Information Meeting (NIM) was duly noticed and advertised and conducted
on May 19, 2021, at Saint Monica's Episcopal Church located at 7070 Immokalee Road, the
meeting was simultaneously run-on Zoom to allow for remote audience participation.
7. This Petition was continued from the August 12, 2021, HEX hearing. Staff was notified by
the applicant prior to the hearing that their sign contractor had failed to post the required Public
Hearing signs in a timely manner. The application's sign contractor posted the required Public
Hearing signs on or about August 9, 2021, with the new hearing date being displayed on said
signs.
8. The County's Land Development Code Sections 10.02.13.E.1 and 10.02.13.E.2 lists the
criteria for an insubstantial change to an approved PUD Ordinance. The Hearing Examiner
having the authority of the Planning Commission may approve a request for an insubstantial
change to an approved PUD ordinance upon review and evaluation of the criteria in the Collier
County Land Development Code.I
Section 10.02.13.E.1 Criteria:
1. Is there a proposed change in the boundary of the Planned Unit Development (PUD)?
The record from the public hearing reflects that there is no proposed change in the
boundary of the PUD.
2. 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 from the public hearing 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.
'The Hearing Examiner's findings are italicized.
Page 2 of 6
3. Is there a proposed decrease in preservation, conservation, recreation, or open space areas
within the development in excess of five (5) percent of the total acreage previously
designated as such, or five (5) acres in area?
The record from the public hearing reflects that there is no proposed decrease in
preservation, conservation, recreation, or open space areas within the development as
designated on the approved Master Plan.
4. 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 from the public hearing reflects that the request does not increase areas or
relocate areas for nonresidential land uses. The changes to the Mixed -Use Development
standards does not increase or relocate areas designated as Mixed -Use on the Master
Concept Plan and does not increase the amount of non-residential intensity permitted in
the PUD.
5. 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 from the public hearing reflects that there are no substantial impacts resulting
from this amendment.
6. 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 from the public hearing reflects that the request does not change land use
activities and does not generate a higher level of vehicular trips.
7. Will the change result in a requirement for increased stormwater retention, or otherwise
increase stormwater discharge?
The record from the public hearing reflects that the proposed changes will not impact or
increase stormwater retention or increase stormwater discharge.
8. Will the proposed change bring about a relationship to an abutting land use that would be
incompatible with an adjacent land use?
The record from the public hearing reflects that there will be no incompatible relationships
with abutting land uses.
Page 3 of 6
9. 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 elements
of the Growth Management Plan or which modification would increase the density of
intensity of the permitted land uses?
The record from the public hearing reflects that this modification is in compliance with the
Future Land Use Element of the Growth Management Plan.
10. 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. 3 80.06 (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 from the public hearing reflects that the Baumgarten MPUD is not a DRI,
therefore this criterion is not applicable.
11. 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 from the public hearing reflects that the proposed change is not deemed to be
substantial.
Section 10.02.13.E.2 Criteria:
1. Does this petition change the analysis of the findings and criteria used for the original
application?
The record from the public hearing reflects that the change proposed does not affect the
original analysis, rezone, and PUD findings.
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 Sections
10.02.13.E.1 and 10.02.13.E.2 of the Land Development Code to approve Petition.
DECISION.
The Hearing Examiner hereby APPROVES Petition Number PDI-PL20210000379, filed by
Christopher O. Scott of Peninsula Engineering, representing BCHD Partners II, LLC, with respect
to the property in the Baumgarten Mixed -Use Planned Unit Development (MPUD), Ordinance No.
Page 4 of 6
19-11, as amended, and described as 55.66± acres located at the southeast quadrant of Immokalee
Road (CR 846) and Collier Boulevard (CR 951) in Section 26, Township 48 South, Range 26 East,
Collier County, Florida, for the following:
• An insubstantial amendment to the Baumgarten Mixed -Use Planned Unit Development
(MPUD), Ordinance No. 19-11, as amended, Exhibit B, Section I, Mixed -Use
Development Standards, by decreasing the required minimum yard setback from the
eastern project boundary from 50 feet to 25 feet, removing the applicable provision that
any building exceeding 50 feet in height shall increase its setback by one foot for each
one feet exceeding 50 feet of zoned height from the eastern PUD boundary, and limiting
the maximum height of principal structures within 50 feet of the eastern project
boundary to 35 feet zoned height and 45 feet actual height.
Said changes are fully described in the Proposed Language to Ordinance 19-11, as amended,
Exhibit B, Section I, Baumgarten MPUD Development Standards attached as Exhibit "A" and are
subject to the condition(s) set forth below.
ATTACHMENTS.
Exhibit A — Proposed Language to Ordinance 19-11, as amended, Exhibit B, Section I,
Baumgarten MPUD Development Standards.
LEGAL DESCRIPTION.
See Ordinance No. 19-11, as amended and described as 55.66± acres located at the southeast
quadrant of Immokalee Road (CR 846) and Collier Boulevard (CR 951) in Section 26, Township
48 South, Range 26 East, Collier County, Florida
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.
Page 5 of 6
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"
EXHIBIT B
BAUMGARTEN MPUD
DEVELOPMENT STANDARDS
The tables below set forth the development standards for land uses within the Baumgarten MPUD.
Standards not specifically set forth herein shall be those specified in applicable sections of the LDC in
effect as of the date of approval of the SDP or subdivision plat.
I. MIXED- USE:
PRINCIPAL USES
ACCESSORY USES
MINIMUM LOT AREA
10, 000 Sq. Ft.
N/A
AVERAGE LOT WIDTH
100 ft.
N/A
MINIMUM YARDS (External)
From Immokalee Road ROW
25 ft.
SPS
From Collier Boulevard ROW
25 ft.
SPS
From Eastern Project Boundary***
50 ft. 25 ft.
15 ft.
From Southern Project Boundary
200 ft. Minimum
200 ft. Minimum
MINIMUM YARDS (Internal)
Internal Drives/ ROW
10 ft.
10 ft.
Rear
10 ft.
10 ft.
Side
10 ft.
10 ft.
Lakes (measured from control
elevation)
25 ft.
20 ft.*
Preserve
25 ft.
10 ft.
MIN. DISTANCE BETWEEN STRUCTURES
1/2 the sum of building heights
10 ft.
MAXIMUM HEIGHT***
ZONED
ACTUAL
ZONED
ACTUAL
Retail Buildings
45 ft.
65 ft.
35 ft.
45 ft.
Office Buildings and Hotel/ Motel
55 ft.
65 ft.
35 ft.
45 ft.
MINIMUM FLOOR AREA (ground floor)
1,000 sq. ft. **
N/A
MAXIMUM GROSS COMMERCIAL AREA
270,000 sq. ft.
N/A
* No structure may be located closer than 20 feet to the control elevation of a lake (allowing for
the required minimum 20-foot wide lake maintenance easement).
** Per principal structure. Kiosk vendor, concessions, and temporary or mobile sales structures
shall be permitted to have a minimum floor area of twenty-five (25) square feet and shall be
subject to the accessory structure standards set forth in the LDC.
*** Any building located within exeeeding 50 feet ;^ height -shall ;^ ^ :« setback by One feet fee
earch ^ ^ feet ^ eding 50 feet of wed height 4GFA the eastern PUD boundary is limited to a
maximum zoned height of 35 ft. and a maximum actual height of 45 ft. No dumpster enclosure
permitted within 105 feet of the eastern PUD boundary.
Note: Residential dwellings may be constructed above retail or office use.
Baumgarten PUD, PL20210000379 Page 1 of 1
Revised May 25, 2021