Resolution 1995-047
DA~E: January 10, 1995
ATTEST:
DWI~HT~. BROCK, CLERK
RESOLUTION NO. 95-~
A RESOLUTION EVIDENCING APPROVAL OF THE
STIPULATED SETTLEMENT AGREEMENT WITH
THE FLORIDA DEPARTMENT OF COMMUNITY
AFFAIRS TO RESOLVE CASE NO. 94-3494 GM
WHEREAS, Collier County adopted a Growth Management Plan
Amendment by Ordinance No. 93-22 on April 12, 1994; and
WHEREAS, the Florida Department of Community Affairs,
hereinafter referred to as the "Department", issued a statement
of Intent to find the Growth Management Plan Amendment Not In
Compliance based on the Objections, Recommendations and Comments
Report (ORC Report) issued by the Department on January 27, 1994;
and
WHEREAS, changes were made by Collier County to the
Amendment pursuant to the ORC Report; and
WHEREAS, the Florida Department of Community Affairs found
the Growth Management Plan Amendment not in compliance on June
13, 1994; and
WHEREAS, Collier County has prepared additional language to
be added to the Amendment to meet the objections identified by
the Department of Community Affairs as more fully set forth in
Exhibit B to the stipulated Settlement Agreement.
NOW, THEREFORE BE IT RESOLVED, BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA that:
The Stipulated Settlement Agreement in Case No. 94-3494 GM
attached hereto as Exhibit A be entered into and further that
staff be directed to prepared a Remedial Amendment to Collier
County's Growth Management Plan in conformity therewith.
BE IT FURTHER RESOLVED that this Resolution be recorded in
the minutes of the Board of County Commissioners.
This Resolution adopted after motion, second and roll call
vote.
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Approved as to form and legal
sufficiency:
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STATE OF FLORIDA
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DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
)
)
)
)
) DOAH CASE NO. 94-3494GM
)
)
)
)
)
vs.
COLLIER COUNTY,
Respondent.
~'IPULATED SETTLEMENT AGREEMENT
Petitioner, Florida Department of Community Affairs
(department), and Respondent, Collier County (County), hereby
stipulate and agree as follows:
GENERAL PROVISIONS
1. Definitions. As used in this agreement, the following
~ words and phrases shall have the following meanings:
a. ~: The Local Government Comprehensive Planning
and Land Development Regulation Act, as codified in Chapter 163,
Part II, Florida Statutes (1991 and 1992 Supplement) and Chapter
93-206, Laws of Florida.
b. Aqreement: This stipulated settlement agreement.
c. Plan amendment or amendment: The amendment to the
plan adopted by Ordinance No. 94-22 on April 12, 1994.
d. QQAtl: The Florida Division of Administrative
Hearings.
e. In compliance or into compliance: Consistent with
Sections 163.3177, 163.3178 and 163.3191, Florida Statutes,
Section 187.201, Florida Statutes, the applicable regional policy
plan, and Chapter 9J-5, Florida Administrative Code.
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f. Notice: The notice of intent issued by the
department to which was attached its statement of intent to find
the plan amendment not in compliance.
g. Petition: The petition for administrative hearing
and relief filed by the department in this case.
h. Remedial Action: A remedial plan amendment,
submission of support document or other action described in the
statement of intent or this agreement as an action which must be
completed to bring the plan amendment into compliance.
i. Remedial Plan Amendment or Remedial Amendment: An
amendment to the plan amendment or support document, the need for
which is identified in this agreement, including its exhibits,
and which the local government must adopt to complete all
remedial actions. Remedial plan amendments adopted pursuant to
this agreement must, in the opinion of the department, be
consistent with and substantially similar in concept and content
to the ones identified in this agreement or be otherwise
acceptable to the department.
j. Statement of Intent: The statement of intent to
find the plan amendment not in compliance issued by the
department in this case.
k. Support Document: The studies, inventory maps,
surveys, data, inventories, listings or analyses used to develop
and support the plan amendment.
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2. Entire Aareement. This is the entire agreement
the parties and no verbal or written assurance or promise is
effective or binding unless included in this document.
3. Aooroval bv Governina Bodv. This agreement has been
approved by the governing body at a public hearing advertised in
an advertisement published at least 10 but not more than 15 days
prior to the hearing in the format prescribed for advertisements
in Section 163.3184(15) (c) and Section 163.3187, Florida
Statutes. This agreement has been executed by the appropriate
officer as provided in the local government's charter or other
regulations.
4. Chanaes in Law. Nothing in this agreement shall be
construed to relieve either party from adhering to the law, and
in the event of a change in any statute or administrative
regulation inconsistent with this agreement, the statute or
regulation shall take precedence.
5. Other Persons Unaffected. Nothing in this agreement
shall be deemed to affect the rights of any other person under
the law.
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6. Attornev Fees and Costs. Each party shall bear its own
costs, including attorney fees.
7. Effective Date. This agreement shall become effective
upon the last date of signing by the parties.
8. Puroose of Aareement: Not Establishina Precedent. The
parties enter into this agreement in a spirit of cooperation for
the purpose of avoiding costly, lengthy and unnecessary
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litigation and in recognition of the desire for the speedy~nd
reasonable resolution of disputes arising out of or related to
the plan. The acceptan~e of proposals for purposes of this
agreement is part of a negotiated agreement affecting many
factual and legal issues and is not an endorsement of, and does
not establish precedent for, the use of these proposals in any
other circumstances or by any other local government.
9. Deoartment Powers. The department is the state land
planning agency and has the power and duty to administer and
enforce the Act and to determine initially whether the plan or
plan amendment is in compliance.
10. Exhibits. Exhibits A and B are hereby incorporated by
reference.
11. Neqotiation of Aqreement. The department issued its
notice and statement of intent to find the plan not in
compliance, and filed the petition in this case to that effect.
Subsequent to the filing of the petition the parties conferred
and agreed to resolve the issues in the petition, notice and
statement of intent through this agreement. It is the intent of
this agreement to resolve fully all issues between the parties in
this proceeding.
12. Dismissal. If the local government completes the
remedial actions required by this agreement, including the
adoption of required plan amendments as set forth herein, the
department shall issue a cumulative notice of intent addressing
both the compliance agreement amendment and the initial plan
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subject to these proceedings.
The department shall f~~~
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cumulative notice of intent with the DOAH along with a request to
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dismiss this proceeding.
13. Filinq and Continuance. This agreement shall be filed
with DOAH by the department after execution by the parties. Upon
the filing of this agreement, the administrative proceeding in
this matter shall be stayed by the hearing officer in accordance
with Section 163.31e4(16), Florida Statutes.
14. Retention of Riqht to Final Hearinq. Both parties
hereby retain the right to have a final hearing in this
proceeding in the event of a breach of this agreement, and
nothing in this agreement shall be deemed a waiver of such right.
The department or any other party to this agreement may move to
have this matter set for hearing if it becomes apparent that any
other party whose action is required by this agreement is not
proceeding in good faith to take that action.
15. Description of provisions not in Compliance and
Remedial Actions: Leqal Effect of Aqreement. Exhibit A to this
agreement is a copy of the statement of intent, which identifies
the provisions not in compliance. Exhibit B contains remedial
actions needed for compliance. This agreement constitutes a
stipulation that if the remedial actions are accomplished, the
department shall issue a cumulative notice of intent to find the
plan and remedial amendment in compliance. However, this
agreement shall not be construed to be a waiver of the
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department's authority to make determinations under Section
163.3184(9) (b), Florida Statutes.
16. Remedial Actions to be Considered for Adoption. The
local government agrees to consider for adoption by formal action
of its governing body all remedial actions described in Exhibit B
no later than the time period provided for in this agreement.
17. Adoption or Approval of Remedial Plan Amendments.
Within 60 days after execution of this agreement by both parties,
the local government shall consider for adoption all remedial
plan amendments and amendments to the support document. This may
be done at a single adoption hearing. Within 10 working days
after adoption of the plan amendment, the local government shall
transmit 10 copies of the amendment to the department as provided
in Rule 9J-11.011, Florida Administrative Code. The local
government also shall submit one copy to the regional planning
agency and to any other unit of local or state government that
has filed a written request with the governing body for a copy of
the plan amendment and a copy to any party granted intervenor
status in this proceeding. The amendment shall be transmitted to
the department along with a letter which describes the remedial
action adopted for each part of the plan amended, including
references to specific portions and pages.
18. Review of Remedial Amendments and Notice of Intent.
Within 45 days after receipt of the adopted remedial plan
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amendments and support documents, the department shall ~~
notice of intent pursuant to section 163.3184, Florida S~atutes,
for the adopted amendments in accordance with this agreement.
a. In Comoliance: If the adopted remedial actions
satisfy this agreement, the department shall issue a cumulative
notice of intent addressing both the plan and the compliance
agreement amendment as being in compliance. The department shall
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file this cumulative notice with DOAH and shall move to have this
proceeding dismissed.
b. Not in Comoliance: If the remedial actions are
not adopted, or if they do not satisfy this agreement, the
department shall issue a notice of intent to find the plan
amendments not in compliance and shall forward the notice to DOAH
for a hearing as provided in Subsection 163.3184(10), Florida
Statutes, and may request that the matter be consolidated with
the pending proceeding for a single, final hearing. The parties
hereby stipulate to that consolidation and to the setting of a
single final hearing if the department so requests.
19. Effect of Amendment. Adoption of any compliance
agreement amendment shall not be counted toward the frequency
restrictions imposed upon plan amendments pursuant to Section
163.3187(1), Florida Statutes.
20. Aqreement reqardinq further amendments. The local
government agrees not to transmit or adopt any additional
amendments to its plan, except other remedial actions pursuant to
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an executed stipulated settlement agreement, until the remedial
amendments described in this agreement have been adopted and a
notice of intent to find them in compliance has been issued by
the department.
This agreement contains all the terms and conditions agreed
to by the parties.
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In witness whereof, the parties hereto have caused this
agreement to be executed by their undersigned officials as duly
authorized.
DEPARTMENT OF COMMUNITY AFFAIRS
Charles G. Pattison
Director, Division of Resource
Planning and Management
COLLIER COUNTY~
Board of County
oners
Date
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ate .
Attest:
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C unty Clerk J
7;) 70,',1';/'/,_/} 7. .o..fr. V./F ,-:"d..
;''it;r. Counti Attorney
Assistant General Counsel
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STATE OF FLORIDA
DEPARTXENT OF COY.XUNITY AFFAIRS
l;>C 4.
IN RE:
COUNTY OF COLLIER )
COMPREHENSIVE PLAN )
AMENDMENT )
ADOPTED BY )
ORDINANCE NO. 94-22 )
ON April 12, 1994 )
)
DOCKET NO. 94-l-NOI-l101-(A)-(N)
STATEMENT OF INTENT TO FIND
~REHENSIVE PLAN AMENDMENT
NOT IN COMPLIANCE
The Florida Department of community Affairs hereby issues
its Statement of Intent to find the Comprehensive Plan Amendment
of Collier county, adopted by Ordinance No. 93-22 on April 12,
1994, Not In Compliance based upon the Objections, Recom-
mendations and Comments Report (ORC Report) issued by the
Department on January 27, 1994, which is hereby incorporated by
reference; and based upon changes made to the plan amendment, as
adopted, which were not previously revie'",ed by the Department.
The Department finds that the plan amendment is not "in
compliance," as defined in section 163.31Sql)(b), Florida
Statutes (F.S.), because it is no~ consis~ent ~ith Sec~ions
163.3177 and 163.317S, :.S., the State Comprehensive Plan, the
Southwest Florida Comprehensive Regional Policy Plan, and Chapter
9J-5, Florida Administrative Code (F.A.C.), for the following
reasons:
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EXHIBIT "1\"
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A. Inconsistent provisions. The inconsistent
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A.''IENuX:;l'TS TO !NS!TY ?.hT!NG SYSTEM--TRAJ '=:?
D:::vELOPY.ENT ?IG~TS
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the plan amendment under this subject heading are as follows:
The text for Amendment SP 93-05 states that densities may be
increased through the Transfer of Development Rights (TDR)
section of the Land Development Code, however the text of the
amendment does not include a specific citation (i.e. Ordinance
Number). for the relevant sections of the Land Development Code.
Also, the copy of the Transfer of Development Right.s section of
the Land Development Code that is included with the amendment
references the ST (Sensitive Treatment) section of the Code;
however, the effect of the ST designation and the extent of the
lands within this designation cannot be determined from the
amendment. Furthermore, the amendment is unclear since it
references the incorrect section of the Land Development
Regulations (Section 2.2.~.6 rather than section 2.2.24.10), and
because it sta~es that densities in the ~eceiving areas may be
exceeded "by a minimum of twenty percent (20%)", ",'hich
contradicts ~he da~a and analysis sUbmitted with ~he amendment.
The amendment also is not consistent with Section 2.2.24.10 of the
Land Development Code, which was submitted with the amendment and
which establishes a ffieximum of twenty percent. Because of the
deficiencies iden~ified above, the ame~d~ent is inte~nally
inconsistent with the Growth Management Plan, and does not clearly
implement Objectives 1 and 3 and Policy 3.1.b of the Future Land
Use Element, and o~jectives 6.2, 6.7, 6.8, 11.3, 11.4, of the
Conse=-vation Element. Rules 9J-5.005(2) (a), (5), (6), and (8);
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and 9.1-5.006(2) (b)J., 4., and 5., (3)(b)1. and 40, (3)(c)1.,
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and 7., and (4)(a), 9.1-5.012 (2)(b), (3) (b)l., 2., and 6.,9.1-
S.013(1)(b), (3)(b)2., 3., and 4., LA.C.
B. Re~ommended remedial actions. These inconsistencies may
be remedied by taking the following actions:
Reference the correct section of the Land Development Code
in the amendment, include the ordinance number and adoption date
for the relevant sections of the Land Development Code, and
provide a copy of the ST regulations and a map of ST-designated
areas, which shall be subject to compliance review. Correct the
maximum densities in the TDR receiving areas to be consistent
with the data and analysis and to be consistent with the Land
Development Code.
As an alternative, revise the amendment to state that the
County may allow the transfer of densities from Natural Resources
of the Coastal Zone, Environmentally Sensitive Areas, and Natural
Resource Protection Areas to other areas on the County's Future
Land Use Map, provided that:
(1) the density in the receiving
areas does not exceed the density that is otherwise allowed by
the Density Rating System by 20%; (2) dwelling units shall not be
transferred into ~he coastal Management A~ea from outside the
Coastal Management Area; and (3) lands qualifying as sending
areas must be designated ST (Sensitive Treatment) in the Land
Development Code.
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the plan amendment under this subject heading are as follows:
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Inconsistent provisions.
The inconsistent
pro\&-~
J-'t
STJ-TE CO!-:?REHENS!VE PLJ-N CONSISTENCY
of
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1. The amendment is inconsistent with the Southwest Florida
comprehensive Regional policy Plan, including the following goals
and policies [Rule 9J-S.021(1)]:
Goal (8) (a), Water Resources, Policy (8) (b)lO., to protect
surface and groundwater quality and quantity in the state;
Goal (9) (a), Coastal and Marine Resources, Policy (9) (b)4., to
protect coastal resources from the adverse effects of
development; and Policy (9) (b)6., to encourage land and water
uses which are compatible with the protection of sensitive
coastal resources;
Goal (10) (a), Natural Systems and Recreational Lands, Policy
(10) (b)l., to conserve forests, wetlands, fish, marine life, and
wildlife, Policy (10) (b)7., to protect and restore the ecological
functions of wetlands systems, and Policy (10) (b) 10. f to
eophasize the ac~~isition and main~enance 0: ecologically
. ~ ~
:..nlo.-ac,-
systems;
Goal (16) (a), Land Use, Policy (16) (b) 3., to enhance the
livability and cha~acter 0: u~ban areas th~ough the encou~agement
of an attractive and functional mix of living, wc~kins, shopping,
and ~ecreational activities; and Policy (16) (b)6., ~o consider
the irn?act o~ land use on ~ater ~ality and qua~tity, and the
potential for flooding;
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Goal (26) (a), Plan Implementation, Policy (26) (b)7., to~ensure
the development of comprehensive regional policy plans and local
plans that implement and accurately reflect state goals and
policies and that address problems, issues, and conditions that
are of particular concern in a region.
B. Recommended remedial actions. These inconsistencies may
be remedied by taking the following actions:
1. Revise the amendment, based on relevant data and
analysis, to be consistent with the above-mentioned goals and
policies of the State Comprehensive Plan, in a manner consistent
with the recommended remedial actions described herein.
III.
REGIONAL COMPREHENSIVE POLICY Ph~N CONSISTENCY
A~ Inconsistent provisions. The inconsistent provisions of
the plan amendment under this subject heading are as follows:
1. The amendment is inconsistent with the Southwest Florida
Comprehensive Regional Policy Plan, including the following goals
and policies [Rule 9J-S.021(l)]:
Regional Goal 8.B (p. 6-6) and Policies 8.B.l., 8.B.2., 8.B.3.,
and B.B.5., concerning the development and implementation of
watershed management pla~s, and the maintenance and =es~c=a~ion
of \Je~lands;
Regional Goal 9.h. (p. 9-3) and policies 9.1.a., 9.1.h., and
9.2., concerning the protection of coastal ~esources;
Regional Goal 10.h. (p. 10-3), and Policies 10.h.2., 10.A.3.,
10.A.C., 10.h.10., 10.A.12., 10.h.13., and 10.C.l.g., concerning
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the protection of natural syste~S, ~et:ands, and uPland~~~;
Regional Goal l6.A. (p.16-2) and Policies 16.A.1. and 16.A.3.C.,
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~ concerning-balanced and planned develo~ment;
Regional Goal 16.A. (p. 16-3) and l6.B: (p. 16-6), and policies
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l6.A.3.f.-;-1.6:A.3.g.;-1.6.B.6., and 16.13.7., concerning the
protection of environmentally sensitive lands and directing
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deVeloP1llentto areasthatare'':SuitablElffor growth;:" .
Regional Goal16.C. (p. 16-7) and pOlicies l6.C.l., l6.C.3., and
l6.C.5. concerning d~velopment of platted lands;
B. Recommended remedial actions. These inconsistencies may
be remedied by taking the following actions:
1. Revise the amendment, based on relevant data and
analysis, to be consistent with the above-mentioned goals and
policies of the Southwest Florida Regional Comprehensive Policy
Plan, in a manner consistent with the recommended remedial
actions described herein.
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CONCLUSIOl'S
1. The plan amendment is not consistent with the Southwest
Florida. comprehensive Regional Policy Plan.
2. The plan amendment is not consistent with the State
Comprehensive Plan.
3. The plan amendment is not consistent with Chapter 9J-S,
F.A.C.
4. The plan amendment is not consistent with the
requirements of Sections 163.3177 and 163.3178, Florida statutes.
5. The plan amendment is not "in compliance," as defined
in section 163.3184(1) (b), Florida Statutes.
6. In order to bring the plan amendment into compliance,
the County may complete the recommended remedial actions described
above or adopt other =ernedial actions that eliminate the
inconsistencies.
(l,
Executed this ~ day of June, 1994, at Tallahassee,
Florida.
Cha=les G. Pattison, Di=ecto=
Division of Resou~ce Planning
and Management
De?a~tment 0: Community Affai~s
2740 Centervie~ Drive
Tallahassee, Florida 32399
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EXHIBIT E
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The follo~ing language changes (strike through deletes
language and underlined is proposed language, the bold
language are the revisions proposed by statf to meet the
Department of community Aftaire finding of not in
compliance) are proposed to the Density Rating System of
the Future Land Use Element (page LU-I-23):
Conditions:
I.. uv v6dL ar.all Il:l.e maximUlll permitted dem:;ity shall not
exceed 16 residential dwellings unit5 per gross acreT .
except "hen 11tilizina the Transfer of D<!!veloPllent Riahts
(TORI Section 2.2. 2~.10 of the Land Development Code
adoptod bv ordinanc.. # 91-102. on October 30, 19'1. The
TOR section allows tor the maxi~u~ nU~ber of residential
units permitted under the zonina district to be exceeded
bv a ~';'ui1ltt:il maxiltlUlll of twenty percent (20%) and shall
othe~ise be consistent with the Denaitv Rating system.
Landa aualitied as sendina areas must be desi~atod
SPooial Treatment CST) Overlay District. ~n"ity .hall
not ~. tr~8terred into tbe coastal Manaqement Area trolll
outside the coastal Kanaaement Area.
2.
The maximum permitted density shall not exceed 4
residential dwelling units per gross acre within the
Traffic Congestion Area whiCh inoludes the Coastal
Management Area, unless it is increased through
convQrsi~ of commercial zoning, provision of affordable
housing, use of the provision tor residential in-till,
use of the Transfer ot Development Riqhts Section of the
Land Development Code ado~ted by ordinance t 91-102 on
october 30, 1991, or for density awarded within the
boundaries of an Activity Center. PropertiQs adjacent
to the Traffic congestion Area shall be considered part
of the Traffic Congestion Area if their principal access
is to a road forming the boundary of the Area. In the
Coastal Manaqement Area, TOR's shall only be transferred
from "ST" parcels located within the Coastal Manaqement
Area to receivina areas within the Coastal Manaqement
A~ea. Deneitv shall not be ~ranaferr&d into tho Coesta1
Manaaement ~r&a trom outside ~he coastal Manaaement
Area. The densitv in the receivina area shall not
exceed the zonina district bv a maximum of 20% and
shall otherwise be consistent with the Densitv Retina
BVstelll. Lands aualifvina as eendinq areas must b.
desi(Vll,to~ "ST" by ~he Land DevQlo"men~ Code.
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(rv)
(VII)
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3. The maximum permitted density shall not exceed
4 residential dwelling units per gross acre within
a portion ot the Coastal Management Area which is
bounded by the City ot Naples to the west, US 41 to the
north and the Area of Critical State Concern to the
east, excepting Marco Island, which shall be allowed up
to 6 dwelling units per gross acre for projects that
qualify for a commercial zoning conversion bonus as set
torth in the Density Rating System. Any project
qualifying for such a bonus shall prepare and implement
a hurricane evacuation plan for the project, which shall
be subject to review by the Collier County Emergency
Management Director. A second exception to this density
standard-shall be made to allow a maximum of 12 dwelling
units per gross acre (maximum 8 dwelling units per gross
acre on Marco Island) for affordable housing not to
exceed a maximum of 600 affordable housing units in the
Urban Coastal Fringe Area provided appropriate
mitigation is provided consistent with Policy 13.1.2 of
the Conswrvation and Coastal Management Element.
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The 600 affordable housing units to be allowed in the
Urban Coastal Fringe Area and eligibility therefore will
be determined by using the U.S. Department of Housing
and Urban Development income definitions, bedrooms per
unit and additional guidelines outlined in the
Affordable Housing Density Bonus (ARDB) Ordinance 90-89
adop~ed on November 27, 1990 and shall be distributed
~hroughout the Urban Coastal Fringe Area based on
hurricane evacuation routes as defined by the II..,~~':',,~
a..a U.Lal. Il..ptO. l.1.l.1.t Emeroencv Manaqement Director.
All unit~ (including market rate) awarded by the AROB
Ordinance above the pernitted base density of 4 dWelling
units per gross acre, plus any other density bonus
available minus any density reduction for traffic
congestion or coastal management area shall be counted
toward the 600 dwelling unit cap.
A third exce~tion to the densitv standard would be the
provision to increasQ dQnsitv th~ouqh the Transfer of
Develooment Riqhts Section of the Land Development Code
adopted by Ordinance i 91-102 on October 30, 1991.-
provided aoprooriate mitiaation is reauired consistent
with Policy 13.1.2 of the Conservation and Coastal
Manaaement Element. The density in the receivinq area
~ shalT-not exceed the zonina district by a maximum of
20% and shall otherwise be consistent with the Density
Ratina System. Density shall not be transferred into
the Coastal Manaqement Area trom outside th~ c~astal
Manaqement Area. Lands oualifvina as sendina areas must
be desianated "ST" by the Land Develooment Code.
4. Travel Trailer Recreational Vehiole Parks shall be
allowed to develop at a density consistent with the
Zoning Ordinance.
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