HEX Final Decision 2022-55Page 1 of 4
HEX NO. 2022-55
HEARING EXAMINER DECISION
DATE OF HEARING.
November 10, 2022
APPEAL PETITION.
Petition No. ADA-PL20220004625 - Valencia Golf and Country Club, Orangetree - Appeal
filed by Valencia Golf and Country Club HOA, Inc. of the administrative approvals of
Planned Unit Development Minor Change Petition PMC-PL20220003657 and Insubstantial
Change to Construction Plans ICP-PL20220003659 regarding sidewalks on private
property. The subject property is located in the Valencia Golf and Country Club – Phase 2B
subdivision, part of the Orangetree Planned Unit Development in Section 23, Township 48
South, Range 27 East, Collier County, Florida.
GENERAL PURPOSE FOR THE APPEAL PETITION.
An appeal filed by Valencia Golf and Country Club HOA, Inc. (Valencia HOA) of the
administrative approvals of Planned Unit Development Minor Change Petition PMC -
PL20220003657 and Insubstantial Change to Construction Plans ICP-PL20220003659 initiated
by Lennar Homes, LLC (Lennar) and Roberto Bollt Trustee c/o Orangetree Associates (Bollt)
through its representative Barraco and Associates, Inc. (Barraco), a planning, design and surveying
company, regarding sidewalks on private property associated with Lennar.
STAFF RECOMMENDATION.
Denial.
GENERAL FINDINGS.
1. The public hearing for this Petition was properly noticed and conducted in accordance with all
County and state requirements.
2. The Appeal Petition is timely filed.
3. The public hearing was conducted electronically and in-person in accordance with
Emergency/Executive Order 2020-04.
4. The County’s Land Development Section 8.10.00 and Ordinance 2013-25, as amended gives
the Hearing Examiner the authority to hear an Administrative Type III Appeal.
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ANALYSIS.
Based on the legal arguments, evidence and testimony at the public hearing and a review of the
record, the Hearing Examiner finds:
1. The County correctly incorporated Valencia HOA into the revised approval letters (under
appeal). Valencia HOA has standing.
2. The County correctly recognized a potential pedestrian/vehicle conflict on the subject cul-de-
sac sidewalks and made a reasonable decision to exercise its authority under the PUD minor
change provisions in the County’s Land Development Code. From a planning perspective, the
change eliminating the sidewalks in the cul-de-sac and adding a crosswalk appears logical,
practical, and prudent. Furthermore, the cul-de-sac homes are constructed, have residents in
them, but cannot be given certificates of occupancy until this appeal is settled.
3. The County does not have an express obligation to monitor and review all private HOA
documents, but it can and should, when clarity is needed regarding authority to file an
application involving a PUD. The Land Development Code puts the burden on development
professionals, like Barraco, and HOAs, like Valencia HOA, to inform the County as to which
entity is responsible for the approved PUD.
4. As a procedural matter, the County controls the administration of its ordinances and codes, and
has the burden to insure, to the best of its ability, that applications filed are complete and
contain the correct authorizations. Given the sheer number of administrative decisions the
County makes each year, it’s a mathematical certainty that novel situations will result in an
appeal or controversy. Upon finding errors in applications, the County is authorized to require
corrections in keeping with enforcement of its ordinances and codes.
5. Lennar and Valencia HOA are represented by attorneys well versed in local government,
particularly land use and zoning matters, and interpreting statutes, ordinances, and codes. As
officers of the court and members of The Florida Bar, they are obligated to handle obvious
procedural matters professionally, ensuring fairness and due process.
6. Florida Statute § 720.307, “Transition of association control in a community”, states:
Members other than the developer are entitled to elect at least a majority of the
members of the board of directors of the homeowners’ association when the earlier
of the following events occurs: (a) three months after 90% of the parcels in all
phases of the community that will ultimately be operated by the homeowners’
association, have been conveyed to members other than the developer; (b) such
other percentage of the parcels has been conveyed to members, or such other date
or event has occurred, as is set forth in the governing documents in order to comply
with the requirements of any governmentally chartered entity with regard to the
mortgage financing of parcels.
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Counsel for Valencia HOA communicated to the County and Lennar that control had
transferred to Valencia HOA. Once again, this is confirmed by the revised letter approvals
(currently under appeal) recognizing Valencia HOA.
7. As stated in Florida Statues § 720.307, “the term ‘members other than the developer’ shall
NOT include builders, contractors, or others who purchase a parcel for the purpose of
constructing improvements thereon for resale”. If Lennar meets this definition, Lennar, as a
matter of law, cannot be a member of the HOA. Lennar’s subsequent purchasers of the homes
would be members of the HOA. As stated above, the homes are occupied but have not received
a final certificate of occupancy due to this appeal.
8. Florida Statutes § 720.306(4) states:
At the time the members are entitled to elect at least a majority of the board of
directors of the homeowners’ association, the developer shall, at the developer’s
expense, within no more than 90 days deliver the following documents to the board:
(a) All deeds to common property owned by the association; (b) the original of the
association’s declarations of covenants and restrictions; (c) a certified copy of the
articles of incorporation of the association…and (o) any permits issued to the
association by governmental entities.
The PUD ordinance is a permit issued to the association by Collier County.
9. For PUD monitoring purposes, the County’s Land Development Code Section 10.02.13(F)(4)
requires the following:
County will be given at least 6 months prior written notice to a change in ownership,
to a community association, including but not limited to transfer of all or part of the
development to a Home Owners Association…
This section goes on to state that,
Change in ownership of portions of a PUD development shall not absolve the
original owner of the requirements to file an annual monitoring report.
The code describes what and how to file with the County to demonstrate a change in ownership.
The burden is on the PUD owner not the County. Violation of this provision is punishable
under the provision of LDC Section 8.08.00. The County recognizes Bollt for PUD
monitoring, as evidenced by the County’s “2022 DRI/PUD Monitoring Form.” If Valencia
HOA is now the PUD owner, it must follow the above referenced code provisions. Since the
PUD monitoring provisions are in the same LDC section as the Minor PUD Changes, it is
reasonable that the County would refer to its records. Barraco gave Lennar authorization to
file the application for the Minor PUD Change, which was coordinated by Lennar’s legal
counsel, who understands the above referenced statutes, ordinances and codes. If Lennar is a
builder under Fla. Stat.§ 720.307, and if ownership had changed to Valencia HOA, the County
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needed to get assurances as to who can apply for a Minor PUD Change, regardless of who is
listed in the PUD monitoring records. Once again, the County did revise its approvals to
acknowledge Valencia HOA’s role regarding the crosswalks. Yet the approvals are directed
at Lennar through Barraco because the sidewalk removal is on private property and not in the
right-of-way controlled by Valencia HOA.
10. Based on the forgoing legal provisions, the applications are incomplete without an
authorization from Valencia HOA. If any of the cul-de-sac homes are now owned by an
Association member, it would be prudent to require them to be on the applications. If Lennar
is a Builder under Fla. Stat. § 720.307, it cannot be a member of the Association and does not
own the PUD it seeks to change. Lennar may own property in the PUD but it does not own
the PUD. If Valencia HOA is the owner of the PUD, it must clarify or amend the monitoring
records that the County relied on. The sidewalk changes cannot be approved until the
applications are amended with all affected parties eligible under the law.
DECISION.
The Hearing Examiner hereby GRANTS Appeal Petition Number ADA-PL20220004625, filed by
Michael R. Whitt, Esq. of Hahn Loeser & Parks, LLP representing Valencia Golf & Country Club
Homeowners Association, Inc.
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
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________________________ ____________________________________
Date Andrew Dickman, Esq., AICP
Hearing Examiner