STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE BABCOCK COMPANY, )
)
Petitioner, )
)
v. ) CASE NO. 87-2519
) CITY OF TAMPA, et al., )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on March
21 and 22, 28 - 31 and June 13 - 16, 1988, in Tampa, Florida. The issue for determination in this proceeding is whether the petitioner, The Babcock Company, is entitled to approval of its application for a Development of Regional Impact for Rocky Point Office and Commercial Park, a mixed-use office, hotel-motel and restaurant development to be located on Rocky Point Island in Hillsborough County, Florida.
APPEARANCES
For Petitioner: Eugene D. Sterns, Esquire The Babcock Co. David Smolker, Esquire
Mark D. Solov, Esquire Sterns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A.
One Tampa City Center Suite 3300
Tampa, Florida 33602
For Respondent: Douglas M. Wyckoff, Esquire City of Tampa de la Parte, Gilbert &
Gramovot, P.A.
705 East Kennedy Blvd. Tampa, Florida 33602
For Respondent: Linda N. Hallas, Esquire
Tampa Bay Regional Law Offices of Roger S. Tucker Planning Council 9455 Koger Blvd., Suite 209
St. Petersburg, Florida 33702
For Intervenor: Jeffrey N. Steinsnyder, Esquire Florida Department Office of General Counsel
of Community Affairs State of Florida, Department
of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Intervenor: G. Steven Pfeiffer, Esquire New York Yankees Fowler, White, Gillen, Boggs,
Limited Partnership Villareal & Banker, P.A.
101 North Monroe Street Suite 1040
Tallahassee, Florida 32301
For Intervenor: Jann Johnson, Esquire Shriners Hospitals Ausley, McMullen, McGehee,
for Crippled Carothers & Proctor Children 227 South Calhoun Street
Post Office Box 391 Tallahassee, Florida 32302
INTRODUCTION
The petitioner, The Babcock Company (Babcock), timely filed a Notice of Appeal from the City of Tampa's Development Order dated February 26, 1987. The Development Order approved with conditions Phase I of the proposed development, and denied with conditions Phase II of the proposed development.
In support of its position that it is entitled to approval of the entire proposed Rocky Point Commercial and Office Park, Babcock Presented the testimony of William Lopez; Michael P. Patterson, accepted as an expert witness in the area of urban land planning; Roy Chapman; John Wright, accepted as an expert in the areas of traffic engineering and traffic planning; Steve Tindale; Bala Padmanabhan; Nannette D. Hall; Scott Smith Chinery; Michael Angus Kenney, accepted as an expert in air Pollution monitoring, assessment and modeling; Jana Goble; and Wayne A. Tocknell. Babcock's Exhibits 1-3, 6-9, 11, 13, 28, 37, 38,
41-43, 55, 60, 85-87, 95, 122, 128, 129, 131, 134, 143, 151, 152, 154, 156, 164,
169, and 193-196C were received into evidence.
The Department of Community Affairs presented the testimony of John Thomas Beck, accepted as an expert witness concerning the application of Chapter 380, Florida Statutes, and the Development of Regional Impact (DRI) process. No exhibits were offered by the Department of Community Affairs.
The City of Tampa presented the testimony of Catheline S. Hale, accepted as an expert in the modeling of indirect sources of air pollution; Susan Swift Mihalik, accepted as an expert in land use planning; Clarence G. Stephens; Robert P. Wallis; Joseph Robert Garrity; Roy D. Chapman, accepted as an expert in traffic engineering, transportation planning and transportation methodology; Steve Tindale, accepted as an expert in impact fees, infrastructure financing, transportation planning and transportation engineering; and Richard D. Adair.
Received into evidence were the City's Exhibits 2(A-C), 6, 14A, 14B, 17, 21-23, 33, 34, 48, and 56-58.
The Tampa Bay Regional Planning Council (TBRPC) presented the testimony of Sheila Benz, and its Exhibits 23, 24, 51, 51A, 52B and 52C were received into evidence.
The New York Yankees Limited Partnership presented the testimony of Frederick B. Matthews and William D. Tipton, accepted as an expert in civil engineering, transportation engineering and traffic planning. No exhibits were offered.
The Shriners Hospitals for Crippled Children (Shriners) offered the testimony of Lewis K. Molnar. No exhibits were offered.
Subsequent to the hearing, each of the parties submitted proposed recommended orders. To the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to in the Prehearing Stipulations, the following relevant facts are found:
Babcock, a Weyerhauser Company, is the agent for Centennial Homes, Inc., another Weyerhauser Company, and is the current owner and/or seller of real property located on Rocky Point Island, an island Situated along the eastern shore of Tampa Bay. The Island is bisected by the Courtney Campbell Causeway (State Road 60), a major regional roadway which runs across Tampa Bay and links Pinellas and Hillsborough Counties. (Prehearing Statements of Fact)
The City of Tampa (City) is a municipal corporation and is the local government having jurisdiction to render development orders for DRIs located within its municipal boundaries. The TBRPC is the regional planning council within whose jurisdiction the Rocky Point Office and Commercial Park is located. The Department of Community Affairs (DCA) is the state land planning agency having jurisdiction over the proposed Babcock project. (Prehearing Statements of Fact)
The New York Yankees is a New York limited Partnership which owns and operates the Bay Harbour Inn, located on the south portion of Rocky Point Island directly across the Courtney Campbell Causeway from the proposed Rocky Point Office and Commercial Park. The Bay Harbour Inn is a 260-room motel, with a banquet room, meeting rooms, a restaurant and a cocktail lounge, and is Situated on the only true beachfront property in Tampa. (Prehearing Statements of Fact; testimony of Frederick Matthews, Tr. 1524-1547)
Shriners Hospitals is a Colorado charitable corporation authorized to do business in Florida. Its international headquarters is located on the south portion of Rocky Point Island directly across the Courtney Campbell Causeway from the proposed Rocky Point Office and Commercial Park. Purchased in 1980, the six and a half acre site was selected by the Shriners for its high visibility and its convenient access. The Shriners headquarters average approximately fifty (50) visitors per day. The Shriners operate 22 hospitals which treat crippled and burned children without charge to the patients. It depends upon its members and visitors to assist in funding efforts. If the visibility and/or accessibility of its headquarters were impaired, its ability to raise funds to operate its childrens' hospitals would be adversely affected. (Prehearing Statements of Fact; testimony of Louis Molnar, Tr. 2424-2429)
In 1973-74, Centennial purchased approximately 62 acres of land located on the north side of Rocky Point Island. Between 1977 and 1980, Centennial constructed road, water, sewer and drainage improvements and platted a subdivision of the property known as the Rocky Point Office and Commercial Park. Between December 1981 and November 1983, Babcock sold, at a substantial profit, four parcels within the Rocky Point Office and Commercial Park to separate
individual developers. (Prehearing Statements of Fact; testimony of William Lopez, Tr. 101-104)
In the spring of 1984, a dispute arose between Babcock and the Department of Community Affairs as to whether the Rocky Point Office and Commercial Park was required to undergo Development of Regional Impact (DRI) review pursuant to Section 380.06, Florida Statutes. In order to resolve this dispute, Babcock and the DCA entered into a Preliminary Development Agreement (PDA) pursuant to Section 380.032(3), Florida Statutes. Under that Agreement, the entire Rocky Point Office and Commercial Park was required to undergo DRI review. However, the four previously sold parcels were permitted to be developed and occupied prior to receipt of a final Development Order with, respectively, a 70,000 square foot office building, a 183,393 square foot office building with an associated 5,000 square foot restaurant, a 202 suite hotel and a 176 room hotel. The Agreement also required Babcock to pay to the DCA $50,000 to fund a study of growth management issues on Rocky Point Island. (Prehearing Statements of Fact; Babcock's Exhibit 8)
Pursuant to the Preliminary Development Agreement, a DRI pre- application conference was held on April 7, 1984, and Babcock's Application for Development Approval (ADA) was filed on October 19, 1984. In its ADA, Babcock proposed a total of 1,375,393 square feet of office uses, 378 rooms of hotel or motel use and 17,000 square feet of restaurant development in two phases. Phase I consisted of the 253,393 square feet of office uses, the 378-rooms of hotel use and 5,000 square feet of restaurant use permitted by the ADA to proceed prior to receipt of a final Development Order for the overall DRI. Phase II consisted of the balance of the proposed DRI: 1,122,000 square feet of office space and 12,000 square feet of restaurant uses. (Prehearing Statements of Fact; Babcock's Exhibits 1-3)
Babcock furnished additional information to the TBRPC in November and December of 1984. From December 1984 to March 1985, the TBRPC, in conjunction with the DCA and the City, proceeded with plans to conduct a short-term traffic study of the immediate Rocky Point Drive/Courtney Campbell Causeway Intersection. Also, the Preliminary Development Agreement with the DCA was amended to require payment of the $50,000 to TBRPC instead of the DCA. These funds were subsequently paid to TBRPC by Babcock. (Prehearing Statement of Facts; Babcock's Exhibit 9)
On or about March 12, 1985, the TBRPC determined the ADA was sufficient and so notified the City of Tampa. The City Council set a public hearing for May 23, 1985 to consider Babcock's ADA.
In April, 1985, the short-term study was completed. The purpose of that study was to (1) determine the maximum at-grade roadway improvements which could be made to the Intersection and (2) determine the level of development which could be accommodated thereby. The conclusion of the short-term study was that, with the maximum amount of at-grade improvements (three through lanes in each direction), the intersection would operate at Level of Service (LOS) "E" in the morning peak hour in the year 1990 with existing and approved development. The afternoon peak hour would operate at LOS "D". Therefore, it was concluded that there was no capacity for any additional development on Rocky Point Island north or south of Courtney Campbell Causeway using the Rocky Point Drive intersection. (Prehearing Statements of Fact; Babcock's Exhibit 37)
On May 13, 1985, the TBRPC submitted its regional report and recommendation. The TBRPC recommended denial, but set forth conditions which,
if satisfied, would result in a recommendation of approval. The Council's prime concern was the adverse impact of the proposed project upon the transportation network and regional facilities in the area, and mitigation of those impacts.
The Council determined that "The addition of a project of this magnitude to an already overburdened infrastructure raises serious questions regarding land use and public facility decisions for this area of the region." The TBRPC concluded that the Babcock DRI would have a substantial negative impact upon several regionally significant highway facilities. While the council did identify some positive impacts from the proposed project (such as increased employment opportunities and increased ad valorem tax yields), the positive impacts were not site-specific to Rocky Point Island. (Babcock's Exhibit 13, TBRPC's Exhibit 52B, page 8)
The TBRPC also proceeded with a longer term traffic study of the Courtney Campbell Causeway corridor area. The long-term study's stated purpose was to determine whether the traffic to be generated by the overall proposed development on Rocky Point Island, including Babcock's DRI, could be accommodated on the Causeway corridor given reasonable levels of road improvements. (Prehearing Statements of Fact)
Except as to conditions relating to transportation, levels of development, and development phasing, Babcock and City Staff were in substantial agreement by May 23, 1985, on the terms and conditions of a recommended development order approving with conditions Babcock's ADA. At the public hearing on May 23, 1985, the City Council voted to defer consideration of the ADA in order to allow additional time to address and resolve various traffic related issues and to formulate conditions relating to mitigation of the project's transportation impacts. From that point forward, proceedings before the City were protracted, and public hearings were continued on numerous occasions. (Prehearing Statements of Fact)
The long-term study was completed in December of 1985, and was formally released on February 20, 1986. The study concluded that a reduced amount of development on Rocky Point Island could be accommodated with a reasonable level of improvements, including an overpass at the intersection of Rocky Point Drive and Courtney Campbell Causeway. The study further concluded that an alternative development scenario would allow over twice the existing and approved development. (Prehearing Statements of Fact)
Review and comment regarding the long-term study as well as negotiations regarding Development Order conditions resulted in further continuances of the public hearing on the Babcock ADA. On September 25, 1986, City Council approved on first reading a proposed ordinance issuing a Development Order approving Babcock's ADA. (Babcock's Exhibit 6) The City Council also directed that a further traffic study be conducted regarding Rocky Point Island. On October 23, 1986, the City Council heard objections to the issuance of the Development Order from surrounding property owners, including the New York Yankees and the Shriners. The matter was then continued until December 18, 1986, over Babcock's objections to further continuances. On December 18, 1986, the City Council again continued the matter to April 9, 1987, despite Babcock's objection to further continuances. (Prehearing Statements of Fact)
On December 31, 1986, Babcock filed a Complaint for Mandamus seeking to compel the City of Tampa to render a Development Order. The Circuit Court issued a Final Peremptory Writ of Mandamus on February 16, 1987, commanding the
City Council to adopt an ordinance issuing a Development Order. (Prehearing Statements of Fact)
On February 26, 1987, the City Council adopted emergency Ordinance No. 9544-A constituting a DRI Development Order which approved with conditions Phase I, and denied with conditions Phase II of the Rocky Point Office and Commercial Park DRI. The approval of Phase I (consisting of the development previously approved by the Preliminary Development Agreement) was conditioned upon payment to the City of $582,566.09, based on the City's transportation impact fee then in effect. Denial of Phase II was based upon the City's finding that the development would cause the intersection of Rocky Point Drive and Courtney Campbell Causeway to operate below a level of service (LOS) "D" peak, and that the feasibility of traffic improvements and Babcock's fair share of the costs thereof' to mitigate traffic impacts and maintain LOS "D" peak hour had not been fully determined. Before Phase II could be approved, the Development Order required Babcock to institute worker flex time conditions and to show the feasibility of, and funding commitments for, the roadway improvements necessary to maintain LOS "D" peak hour on the Causeway for project build-out. Further, Babcock would be required to pay, in advance of further building permits, a proportionate share contribution calculated under Rule 9J-2.0255, Florida Administrative Code, or City of Tampa Transportation Impact Fees, whichever was greater. Needed improvements caused by both the approved Phase I development and the denied Phase II development were listed. (Babcock's Exhibit 7)
Babcock's proposed development is consistent with the zoning which existed on the property prior to Centennial's acquisition of the property and at the time the ADA was filed. It is also consistent with existing development on the Island. However, on December 17, 1987, during the pendency of these proceedings, the City Council rezoned the undeveloped portions of Babcock's property from C-1 and C-2 (general commercial) to RM-24 and RS-60 (residential, multi- and single-family). (TBRPC's Exhibit 51 and 51-A) The new zoning would not allow the development proposed by Babcock.
Courtney Campbell Causeway is a regionally significant roadway because it serves as one of only four links between Pinellas and Hillsborough Counties and is the only direct link between the Cities of Tampa and Clearwater. There is no reason to believe that the Causeway will not remain a significant regional roadway in the future. (Tipton, Tr. 2475) The traffic impacts of the proposed Babcock DRI take place in a unique setting. The entire development will be served by a single intersection located at Rocky Point Drive, which runs north and south, and Courtney Campbell Causeway, which runs east and west. There is no alternative route for people who would work on or visit the Island, other than the Causeway. Thus, Rocky Point Island is unique from a traffic planning perspective because of its location on a major regional link and its single point limited access onto said link. (Chapman, Tr. 2090 and 2185; Tipton, Tr. 2473)
DRI review is site-specific and location is a critical factor. In reviewing the traffic impacts of a proposed DRI, the applicant identifies the regionally significant roadways which it projects will operate below Level of Service (LOS) "D" peak hour upon buildout of its project and upon which its project contributes a certain percentage or more of the LOS "D" peak hour capacity. The DCA requires an applicant to identify those regional roadways on which its traffic contributes ten percent (10%) or more of the LOS "D" peak hour capacity, while the TBRPC's requirement is five percent (5%). The applicant then identifies the roadway improvements needed to return the roadway to LOS "D" peak hour. (Beck, Tr. 1495; Benz, Tr. 2356) Developers need not identify
roadways `which will operate at LOS "D" or better at the time of buildout, nor are they required to mitigate for the capacity which they are absorbing at locations which will be functioning at acceptable levels. (Benz, Tr. 2375) In other words, no commitment for roadway improvements is required so long as the LOS would not deteriorate below "D" during the peak hour.
The DCA has three options for mitigation of traffic impacts which, if included in a Development Order, will preclude DCA appeal. The DCA's Transportation Rule, Rule 9J-2.0255, Florida Administrative Code, contains the three mitigation options. The first option is staging, the second is pipelining and the third is a creative option which provides for flexibility in situations such as an areawide DRI with mass transit. (Beck, Tr. 1498) These options are considered minimum criteria, and the local government and regional planning council may require more stringent measures than those found in the DCA's Rule in order to address traffic impacts. According to the DCA's interpretation of Chapter 380, Florida Statutes, payment of a local impact fee by a DRI developer would not necessarily make adequate provision for the transportation impacts of a DRI. (Beck, Tr. 1406-07) It is the position of the DCA that the Legislature intended to hold DRI developers to more stringent standards than non-DRI developers. (Beck, Tr. 1432)
The TBRPC would offer three options, plus a creative option, to local government for mitigation of traffic impacts. The first option requires funding commitments from either the developer, the Department of Transportation, or any other source, for all roadway improvements identified. Such commitments must be in place prior to each phase of the development's approval. The second option is a phasing or staging approach whereby the developer proceeds on a piecemeal basis, obtaining funding commitments for smaller segments of the project. The funding commitments must be viable at the time of approval. The third option is known as the "pipelining" option which does not require that funding commitments for all roadway improvements be in place prior to development. Under this option, the developer is permitted to construct or fund the construction of one or more of the necessary improvements needed to maintain LOS "D." The developer's fair share contribution of the cost of all improvements is calculated, and that contribution is directed to one or more of the necessary improvements. The pipelining option is a tradeoff approach whereby the developer contributes his proportionate share and actually constructs or funds one or more regionally significant projects, and his impacts at other locations identified during the regional review are forgiven in exchange for construction of the pipeline improvement. The pipelining policy is to encourage early construction of immediate major improvement to a regional roadway in exchange for forgiveness of impacts at other locations. The pipelining option was not available at the time the TBRPC issued its report on the Babcock ADA, but was available at the time the City of Tampa issued its Development Order. (Benz, Tr. 2355- 2375; TBRPC's Exhibits 23 and 24)
The Florida Department of Transportation has jurisdiction over improvements to be constructed on the Courtney Campbell Causeway. The City of Tampa has an urban area Metropolitan Planning Organization (MPO) long-range transportation plan which analyses the transportation demand estimates for the horizon year 2010. It is the policy of the TBRPC to encourage local governments to approve the pipelining option for roadway improvements which are consistent with the MPO and the Department of Transportation's long-range plans. (TBRPC's Exhibit 24, Policy 19.8.14) A grade separated interchange at Rocky Point Drive and Courtney Campbell Causeway does not appear on the MPO long-range plan or the work plan of the Florida Department of Transportation. (Adair, Tr. 2274)
The notion of concurrency is a common ingredient in each of the options for mitigation of transportation or traffic impacts. Concurrency means that the developer cannot build until the public improvements are either physically in place or there is a funding commitment from some source (not necessarily the developer) to put them in place. (Benz, Tr. 2388)
A DRI developer does not have to pay money for its impacts. It may phase its development so that it is accommodated by the infrastructure in place, those improvements which are programmed to be put in place over time, or until the improvements are committed to by some other development. It is only when the DRI's impacts exceed existing capacity that the developer must identify and provide for the improvement. (Benz, Tr. 2355-57; Beck, Tr. 1492)
One of the purposes of the Land Use Element of the Tampa Comprehensive Plan 2000 is to coordinate the orderly provision of public facilities (which include transportation facilities) with public and private development activities in a manner that is compatible with the City's fiscal resources. (City's Exhibit 17, page 3, paragraph 3.3) New development or increased intensity is to be permitted only in areas where adequate public facilities exist or can be adequately provided. (City's Exhibit 17, page 18, paragraph 1.2.3) Likewise, commercial and office development is to be permitted at an intensity and a location which complements existing and planned land use and existing and programmed public facilities. (City's Exhibit 17, page 24, paragraph 1.4.1.2; Mikalik, Tr. 1976, 1981, 1982)
Prior to September 12, 1986, the City of Tampa had no transportation impact fee. The City's first impact fee was adopted on September 12, 1986, and it imposed upon all developers a non-site specific flat fee per square foot or per hotel/motel room. The fees imposed were conservative and were not sufficient to pay for the costs of transportation improvements necessary to accommodate new development paying the fee. (Tindale, Tr. 660-667) The impact fee ordinance was amended in 1988. The City was divided into transportation districts, and a different level of fees for each district was established. The transportation impact fees for the Westshore District, which encompassess Babcock's property, were increased. (Babcock's Exhibit 129)
Transportation impact fees generally attempt to measure the value of the entire system consumed by a particular development. An impact fee calculation does not deal with existing conditions. In contrast, the requirement that a DRI developer make "adequate provision" has a different focus. This requirement focuses on the geographic location of the DRI, and measures the effect of the DRI on the public facilities at that location, both present and projected into the future. If certain regulatory levels are exceeded, the developer has several mitigation options to make "adequate provision" concurrently with the impact. Thus, while impact fees look at development in terms of the average value or capacity available to be consumed, the DRI regulatory process views impacts in terms of a performance standard not to be exceeded at a specific geographic location. (Tindale, Tr. 2233-43, 2253- 62)
According to transportation experts, the transportation impacts of a proposed new development can be estimated through the use of the Highway Capacity Manual and the Institute of Traffic Engineers (ITE) Manual, the latter of which predicts the number of "trips" that a certain amount and type of development will generate. Through further calculations, these trips form the basis for conclusions as to the Level of Service (LOS) at which a roadway will operate. The LOS range from "A" (the best) through "F" (the worst). As noted
above, the TBRPC considers LOS "D" peak hour the lowest acceptable level of service. (Chapman, Tr. 322-41; Wright, Tr. 457-74; Tipton, Tr. 2456-60)
Several studies have shown that trip generation rates in the City of Tampa and throughout Florida are typically higher than the national average rates projected by the ITE Manuals. (Tindale, Tr. 646, 704, 820; Adair, Tr. 2275-76; Chapman, Tr. 2120). This may be due to factors such as climate, suburban characteristics and lack of mass transit. (Adair, Tr. 2275-79) Thus, trip rate projections for new developments within Tampa based upon the ITE Manuals would be on the conservative side.
At the time Babcock filed its Application for Development Approval in 1984, the intersection of Rocky Point Drive and Courtney Campbell Causeway was operating at LOS "B" in both the a.m. and p.m. peak hours. (Babcock's Exhibit 3, page 31-16) The short-term study completed in April of 1985 concluded that, assuming maximum at-grade improvements, the intersection at Rocky Point Drive and the Causeway would operate at LOS "E" in the morning peak hours in the year 1990 with existing and approved development. Therefore, the study concluded there was no further capacity for additional development on Rocky Point Island north or south of the Causeway. (Babcock's Exhibit 37) Without additional development above the Preliminary Development Approval (or Phase I), the 1985 Highway Capacity Manual projects that with the current Department of Transportation improvements, the at-grade intersection will operate at LOS "D" or better in both the a.m. and p.m. peak hours in 1992. With full buildout of the Babcock proposal and current Department of Transportation improvements, the 1992 LOS at the intersection would be at or below LOS "E" in both the a.m. and
p.m. peak hours. (Wright, Tr. 1729-30) As noted above, the long-term study issued in February of 1986 concluded that over twice the amount of existing and approved development could be accommodated by an overpass at the intersection of Rocky Point Drive and the Causeway.
The congested conditions which currently exist on the Courtney Campbell Causeway in the vicinity of the Rocky Point Drive intersection occur primarily one-way in the peak hours. In the morning peak hours, the Causeway is congested in the direction moving from the west to the east -- from Pinellas to Hillsborough County. Conversely, in the afternoon peak hours, the heaviest traffic flows from east to west. Thus, there is some excess capacity in the
a.m. and p.m. peak hour direction opposite the prevailing flow of traffic and little or no excess capacity in the direction of the prevailing flow of traffic. (Wright, Tr. 522-23; Patterson, Tr. 1383) While the greatest negative impact on the intersection in the a.m. peak hours is westbound traffic from Tampa turning left to reach South Rocky Point Island, it is the conflicting through traffic movement which creates the total congested condition. In other words, there is no one critical movement. It takes two directional movements in conflict to create the negative impact. (Padmanabahn, Tr. 849-50; Hall, Tr. 864, 909)
With additional development on the Babcock parcel, the intersection at Rocky Point Drive and Courtney Campbell Causeway will degrade to a LOS below "D" in the a.m. peak hours sometime between the years 1990 and 1992. In order to accommodate the traffic impacts of its proposed additional development, Babcock proposes a grade separated interchange which would separate the conflicting turning movements from through traffic and improve the movement of traffic on the Causeway. Babcock's experts testified that with full buildout of the proposed development, the overall operating condition of such an interchange would be LOS "C" during the a.m. and p.m. peak hours in 1992. (Wright, Tr. 528)
While it is technically feasible from an engineering standpoint to design an interchange for the Rocky Point Drive intersection, Babcock failed to demonstrate that the preliminary conceptual design it proposes is feasible. Babcock's witness on the subject was unfamiliar with certain aspects of the design and drawing of the proposed interchange. (Chinery, Tr. 934-40, 945-48) The vehicle mix was not considered in designing the overpass. It is important to know the mix of heavy vehicles because it affects the length of the ramps. (Chinery, Tr. 1011-14) While Babcock's engineers utilized a "weave analysis" in designing the overpass, there was credible evidence presented that the proper analysis for this particular design is a "ramp analysis." If a ramp analysis is performed, the ramp would operate at a LOS "E," as would the Causeway itself. (Chapman, Tr 2156, 2676-79) Although the Department of Transportation requires a 20-year design life for an interchange, Babcock's proposed interchange was not designed for any particular design life. (Chinery, Tr. 1042-43) Also, it was not established whether the proposed interchange would fit within the Department of Transportation's right-of-way on Rocky Point Drive. (Chinery, Tr. 1010-11)
Babcock estimated the cost of the proposed interchange to be $9.5 million, plus or minus 25%. However, Babcock's cost witness did not prepare the estimate himself, did not verify the quantities of materials to be utilized in construction and did not include many costs that would be associated with the proposed interchange. For example, the estimated costs do not include right-of- way costs, design or engineering costs, costs associated with the environmental effects of additional dredging, filling and bulkheading activities, or possible business damages for any existing property owners in the Rocky Point area who might lose access to the Causeway. (Tocknell, Tr. 1832-67) It also appears that the cost estimate of $9.5 million was based upon a conceptual drawing different than the drawing submitted at the hearing. (Tocknell, Tr. 1859) Babcock's Exhibit 128, prepared in May of 1986, indicates that the recommended standard value for interchanges is $7 million. The Ulmerton-U.S. 19 urban interchange located in Pinellas County, which is similar to the proposed interchange, cost $19 million-plus in construction costs, which figure did not include right-of-way costs. (Tocknell, Tr. 1912-13)
Babcock has not offered to fund or construct the proposed interchange at Rocky Point Drive. There was no evidence offered to determine whether a proportionate share contribution by Babcock would fund the proposed grade separated interchange. There was no competent evidence presented that a grade separation is currently scheduled for construction.
It was generally agreed that the existence of a properly designed overpass or interchange at the Rocky Point Drive/Courtney Campbell Causeway intersection would accommodate additional development on Rocky Point Island. However, the extent or amount of such additional development was not established. Babcock's expert presented evidence that the overall operating condition of the intersection with its proposed interchange would be LOS "C" during the a.m. and p.m. peak hours in 1992 with full buildout of its proposed DRI, plus an additional 300,000 square feet of office development. (Wright, Tr.
528) LOS "C" is characterized as the absence of congestion. However, the analysis performed and assumptions made in reaching this conclusion were faulty in many respects. Babcock utilized the ITE Manual, 4th Edition, for its trip generation projections. The 4th Edition projects less traffic per square foot of commercial office development than had been projected under the 3rd Edition that was in use until December of 1987. As indicated above, in Florida, and specifically in Tampa, actual trip generation figures from established developments demonstrate that even the 3rd Edition ITE Manual under-projects traffic impacts. (Tindale, Tr. 646; Adair, Tr. 2275-77; Chapman, Tr. 2120)
Babcock's use of a zero percent background growth rate is incorrect based upon the historic growth rate for Courtney Campbell Causeway (Wright, Tr. 461), other studies of the Causeway and Rocky Point Island, and the likelihood that, with further development on the Island, cars will travel back and forth between North and South Rocky Point Islands. (Patterson, Tr. 270; Chapman, Tr. 2116; Wright, Tr. 1707) A fifteen and twenty percent flex time reduction of trips for all office uses is erroneous because the ITE trip generation rates already account for any flex time which may be occurring (Tipton, Tr. 2465-66) and the ITE Manual does not authorize reduction of trips for flex time. (Wright, Tr. 1743) The internal capture rates and directional traffic split utilized by Babcock were not supported by competent substantial evidence. Babcock's failure to take into account heavy vehicles on Rocky Point Drive is inappropriate since the Island is served by public transportation, and City bus stops are located on the Island. (City's Exhibit 2A; Hale, Tr. 1597)
Babcock's analysis which concluded that with current Department of Transportation improvements, the at-grade intersection could accommodate an additional 300,000 square feet of office use (Wright, Tr. 1808) utilized many of the same faulty assumptions as discussed above. Accordingly, it too, is not supported by competent substantial evidence.
If Babcock were to buildout with the at-grade intersection, the automobile carbon monoxide emissions would exceed the Department of Environmental Regulation's (DER) guidelines and standards for air quality. (Hale, Tr. 1625)
Babcock presented evidence that if the proposed grade separation (the interchange) were in place, carbon monoxide concentrations would not exceed ambient air quality standards for this pollutant. This conclusion is suspect for several reasons. The air quality analysis conducted on Babcock's behalf deviated from the DER's guidelines in several respects. (Kenney, Tr. 1082-83; Hale, 1556) Although parking garages are located in the vicinity, they were not considered in the analysis. (Kenney, Tr. 1136; Hale, Tr. 1593-94, 1630) Use of the intersection by heavy duty vehicles, which emit far more particulate matter than most motor vehicles, was not considered. (Kenney, Tr. 1062-63, 1140) The assumption of traffic traveling unimpeded through the intersection at 35 miles per hour was not substantiated. (Kenney, Tr. 1118-27) Some receptors were not located in accordance with the DER guidelines. (Kenney, Tr. 1195-96; Hale, Tr. 1582, 1627- 29) All these factors affect Babcock's air quality analysis. Thus, while there is little doubt that a grade-separated interchange which permits the free flow of traffic would improve air quality at the subject intersection, it cannot be concluded that full buildout of the proposed DRI would comply with Florida's ambient air quality standards.
Traffic congestion causes user delay costs to the motoring public. If Babcock were to buildout at-grade, the increased delay costs to motorists would be $1,525 per hour or $1,549,400 per year. (City's Exhibit 12; Garity, Tr.
2056-57; Chapman, Tr. 2083) If an interchange were substituted for the existing at-grade condition, and assuming the interchange functioned properly, there would be a savings to the motoring public of approximately one million dollars per year. (Wright, Tr. 2574)
The grade-separated interchange proposed by Babcock will affect the property rights of nearby landowners. The interchange would allow entrance to the Bay Harbour Inn from the Causeway only from the west, and would allow no means for exiting the facility at all. A similar situation would exist for the Rocky Point Beach Resort Hotel. Since the Bay Harbour Inn has no access to
Rocky Point Drive, the only means of providing that access would be through property owned by the Shriners. This would require condemnation of the Shriners' property and the construction of a driveway from Rocky Point Drive to the Bay Harbour Inn either over a large retention pond or through the existing Shriners parking lot. This, of course, would create a substantial hardship upon any further development of the Shriners' 6-acre parcel. Even if Bay Harbour Inn were permitted a driveway onto Courtney Campbell Causeway after construction of the overpass, it would not be a commercially viable access. (Tipton, Tr. 2468- 70; Chapman, Tr. 2110-13; Matthews, Tr. 1540-42; Molnar, Tr. 2427)
Not only would the proposed interchange require use of the Shriners' property in order to provide access to the Bay Harbour Inn, the interchange would diminish the ability of the Shriners to continue performing its charitable activities at its international headquarters. Reduced visibility would adversely affect the Shriners' ability to raise funds to operate its children's hospitals. The overpass would require the construction of a retaining wall which, at its highest point, is about 25 feet high. (Chinery, Tr. 1033) This would virtually obliterate the visibility of the Shriners' property from Courtney Campbell Causeway. (Chinery, Tr. 1041; Molnar, Tr. 2424-27)
As noted above, DRI review is site-specific and location is a critical factor in reviewing a DRI's potential impacts, both positive and negative. (Beck, Tr. 1414) For this reason, other Development Orders entered by the City of Tampa which may contain different conditions for approval do not establish that the City or the TBRPC has acted arbitrarily with regard to the Babcock DRI. For example, the Areawide Westshore DRI does not include Rocky Point Island. As an areawide DRI, it is regulated by Section 380.06(25), Florida Statutes, and the two developments are not comparable. (Babcock's Exhibits 85 and 95) Point Properties, Ltd. is a non-DRI development which is located on North Rocky Point Island on an out-parcel which has direct access to Courtney Campbell Causeway and Rocky Point Drive. (Hall, Tr. 2669) The City's action upon Point Properties' application for a zoning change (while perhaps relevant to the City's action in rezoning Babcock's undeveloped property) cannot be compared with the City's action concerning Babcock's DRI application. The City of Tampa denied the Lifsey DRI for North and South Rocky Point Islands with essentially the same conditions and language as contained in the Babcock Development Order. (Stipulation, Tr. 1523-24)
While not included in the City's Development Order as a change which would make Babcock's proposal eligible to receive approval, evidence was presented at the hearing that City staff would recommend approval of a multi- family residential proposal for the Babcock property on Rocky Point Island. (Mihalik, Tr. 1994) Other developments in Tampa have mixed office uses with residential and retail uses. (Mihalik, Tr. 1992-93) The opinion was offered by City staff that multi-family use would reduce overall trip generation and change the direction and timing of peak hour trips. (Hall, Tr. 878, 896, 905-910; Mihalik, Tr. 1992-94) While it would seem logical that the p.m. peak hour traffic would be less with residential as opposed to office development, the opinion as to a.m. peak hour traffic was not substantiated by sufficient evidence. Indeed, there was evidence indicating that traffic exiting a multi- family development on North Rocky Point Island in the morning hours could aggravate the a.m. peak hour conditions due to conflicts with eastbound through traffic. (Hall, Tr. 877-82) In any event, Babcock did not request development approval for a residential development and sufficient analyses and studies were not presented to enable a conclusion that residential development on Babcock's property would comport with all applicable review standards and criteria.
CONCLUSIONS OF LAW
When a DRI appeal is initiated in accordance with Section 380.07, Florida Statutes, the applicant for development approval, just as in any permitting or licensing proceeding, has the initial burden of going forward and the ultimate burden of establishing that the proposed development meets the statutory and regulatory criteria for approval. The issues and standards for DRI review and approval are stated in rather broad terms. With regard to regional impacts, the law does not require that the proposed project be impact- free. The DRI process is one of balancing favorable and unfavorable regional impacts based upon all the evidence. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla. 1981). The burdens of proof in a DRI proceeding may shift back and forth, with the applicant having the ultimate responsibility to demonstrate that any adverse regional impacts can be adequately cured.
Among the regional issues to be addressed in a DRI review is whether, and the extent to which, the proposed development will efficiently use or unduly burden public transportation facilities. Section 380.06(12)(a)4, Florida Statutes. Another issue is whether, and the extent to which, the development will have a favorable or unfavorable impact on the environment. Section 380.06(12)(a)1, Florida Statutes. Here, it was clearly demonstrated that Babcock's proposed development would unduly burden existing public transportation facilities on the Courtney Campbell Causeway and would adversely affect the air quality in the area. The burden thus shifted to Babcock to demonstrate that there are viable curative measures adequate to mitigate those adverse impacts. Babcock attempted to satisfy that burden by proposing a grade- separated interchange as a curative measure.
There is no doubt that a grade-separated interchange would improve existing and future traffic conditions and air quality at the intersection of Rocky Point Drive and the Courtney Campbell Causeway. However, that does not end the inquiry and satisfy Babcock's burden. The adequacy of such an improvement with respect to the proposed future development, the costs involved and a commitment to construct or fund such an improvement must also be shown. In order to determine whether the curative measure offered by Babcock will be adequate mitigation, it must be shown that the interchange is a feasible building alternative to accomplish the regulatory criterion of maintaining LOS "D" peak hour traffic conditions, and that it can be constructed and funded.
The evidence demonstrates that it is probably feasible from an engineering sense to develop some sort of overpass at the intersection leading into the proposed development. However, Babcock did not present sufficient competent evidence to demonstrate that its proposed interchange would maintain LOS "D" peak hour at full buildout of the project. The transportation analysis presented by Babcock contains numerous inaccurate assumptions and cannot form the basis for a conclusion that the interchange would achieve the regulatory criterion upon full buildout. Likewise, Babcock failed to adequately demonstrate that the existence of an interchange would cure air quality violations at the site were full buildout to occur.
Even assuming that with full development, Babcock's proposed interchange would be effective to maintain LOS "D" peak hour and would meet air quality standards for carbon monoxide, Babcock failed to demonstrate how such a curative measure would be effectuated and implemented with the immediacy required at this location.
Babcock has never offered to fund or construct the proposed grade separation. No evidence was presented to demonstrate that Babcock's proportionate share contribution would wholly fund the proposed grade separation. No evidence was presented that the grade separation is scheduled for construction or that funds have been committed by any public agency for further improvements on the Causeway.
What Babcock appears to be offering as mitigation for the adverse traffic and environmental impacts of its development is some combination of pipelining and/or the payment of the City's impact fees. It seems to be saying, "Here is the solution and Babcock will pay the City's impact fee to support its implementation." This combined offering is inconsistent with the policies of the State, the TBRPC and the City with respect to DRIs.
One of the goals of the pipelining policy is to encourage early construction of immediate major improvements to a regional roadway. In exchange, impacts at other locations are forgiven and left for other solutions. The developer's fair share or proportionate share contribution of the cost of all improvements, as identified in the review process, is calculated, and that contribution is directed to one or more of the necessary improvements. That concept, along with the concept of concurrency, is particularly applicable in this instance due to the critical location of Babcock's DRI and its single access point. Because Courtney Campbell Causeway is the single access to Rocky Point Island, the failure to mitigate traffic impacts as soon as they occur would cause that regionally significant roadway to fail. Since Babcock has made no offer to fund or construct the interchange, the policy and goals underlying the pipelining approach cannot be realized.
Also, it must be remembered that the various options open to a DRI developer are options to be made by the local government, not the developer. A developer cannot force an option upon local government. To allow a developer to decide where, when and how roadway improvements are to be constructed would conflict with the very purpose of Chapter 380 to "facilitate planned development," as well as with other legislative programs and local comprehensive plans. The pipelined improvement is thus an option for local government which requires a commitment from the developer as to a viable method of funding or construction. Having failed to provide such a commitment, the City has no obligation to accept that approach as mitigation.
Babcock urges that DRI developers cannot be required to pay more than non-DRI developers impacting a transportation system. It is contended that Babcock should only be required to pay the City's transportation impact fee as opposed to the entirety of the cost of the grade-separated intersection. Babcock's argument seems to be that the term "adequate provision," as contained in Section 380.06(15)(e)2, Florida Statutes, means nothing more than a requirement that a DRI developer contribute his fair share, proportionate share or pro-rata share for improvements needed to accommodate the proposed development, and that this share can be determined through use of the City of Tampa's transportation impact fee. These arguments, if correct, would render meaningless Sections 380.06(15)(e)1, 380.06(15)(e)2, and 380.06(16)a, Florida Statutes, as well as Rule 9J-2.0255, Florida Administrative Code. The first section cited provides that a DRI developer can be required to contribute or pay for construction or expansion of public facilities only if the local government requires non-DRI developers to contribute their proportionate share of funds or facilities necessary to accommodate impacts having a rational nexus to the proposed development. Section 380.06(15)(e)2 prohibits the approval of DRIs where "adequate provision" is not made for the public facilities needed to
accommodate the impacts of the development. Section 380.06(16)a specifically recognizes the distinctions between DRI requirements and local impact fee requirements by mandating that Development Order conditions with respect to funding or construction be credited against any local impact fees for which the developer may also be subject. And, Rule 9J-2.0255, Florida Administrative Code, defines the manner of calculating those contributions from or on behalf of DRI developers which make "adequate financial provision" for public transportation facilities needed to accommodate the impacts of the proposed development. If the legislative intent were that DRI developers simply pay a local government's transportation impact fee to mitigate the adverse impacts of their proposal, the above statutory and regulatory provisions would be unnecessary.
A DRI is defined in Section 380.06(1), Florida Statutes, as a development that, because of its character, magnitude or location, would have a substantial effect upon the health, safety and welfare of citizens of more than one county. The location, size and character of Babcock's proposed project is such a development. The legislature has determined that such developments are subject to distinct review criteria and may be treated differently than non-DRI developments. The contentions of Babcock fail to recognize the distinctions drawn by the legislature when it chose to utilize, in the same sub-subsection of the statute, the term "adequate provision" for DRI developers and the term "proportionate share" for non-DRI developers. It must be concluded that, having chosen to use different language for DRI and non-DRI developments, the legislature did not intend the same meaning for those two terms. Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA, 1984). Likewise, Babcock fails to acknowledge that the term "proportionate share contribution" when applied to DRI developers in Rule 9J-2.0255, Florida Administrative Code, is defined in terms of "adequate financial provision."
More importantly, however, Babcock's argument fails to acknowledge the various mitigation options adopted by the state and regional land planning agencies charged with the responsibility of implementing Chapter 380, Florida Statutes. The available options embrace the concept of concurrency and do not include the payment of a local government's impact fees. Contrary to the state and regional mitigation options and policies applicable to DRI reviews, local impact fee requirements (often referred to as "pay and go") do not embrace the concept of concurrency. Concurrency is getting roadways' in place prior to development.
The simple payment of a designated fee based upon non-site specific data would not ensure that roadway improvements be in place simultaneous with the scheduled development to accommodate the traffic that will be generated by the development. As noted above, this concurrency concept is particularly important given the location of Babcock's DRI.
Section 380.06(14)(6), Florida Statutes, requires a consideration of whether, and the extent to which, the proposed development is consistent with the local comprehensive plan and local land development regulations. As noted in Finding of Fact 26, the orderly provision of adequate existing and planned public facilities, including transportation facilities, is a theme which runs throughout the City of Tampa's comprehensive plan. New development, and particularly new commercial and office development, is to be permitted at intensities and locations which complement existing and programmed transportation facilities. Having failed to demonstrate that the necessary facilities to mitigate the traffic impacts of the project are existing, planned or to bed funded, Babcock's proposal is inconsistent with these goals and policies of the local comprehensive plan.
As of the date of the final hearing, but subsequent to the issuance of the initial Development Order, the City of Tampa rezoned Babcock's property in a manner which would preclude construction of Phase II of the proposed DRI. Such action taken during the pendency of this appeal would appear to be inconsistent with Sections 380.07(2), 380.06(15)(c)3 and the terms of the Development Order itself which prohibits downzoning within a specific time period. However, in light of the findings and conclusions reached with regard to the adverse impacts of the proposal upon transportation facilities and air quality, and Babcock's failure to present adequate mitigation therefore, a determination of the effect of the rezoning upon Babcock's entitlement to approval is unnecessary.
Babcock urges that the City failed to identify in the Development Order changes which would make its proposal eligible for approval, as mandated by Section 380.08(3), Florida Statutes. The argument seems to be that it was the responsibility of the City and intervenors in this cause to identify, with specificity, the amount of development which is presently available with existing at-grade conditions and the amount of development which would be permitted with a separated grade intersection. In fact, it was determined that no further development beyond Phase I was permissible with the existing roadway conditions. The argument of Babcock fails to acknowledge that it is the applicant's initial and ultimate burden to demonstrate that the development, as proposed, meets the criteria for approval. When adverse impacts are identified, an applicant cannot simply propose a solution without proving either its feasibility or potential for implementation, and then expect or rely upon the local government to propose an acceptable or alternative form of development.
It is not the local government's burden to rewrite applications for development approval. It is clear that Babcock has been informed at every stage of this proceeding that the prime problem with its proposed development is traffic impacts and that, in order to receive approval it must demonstrate the feasibility of and funding commitments for the improvements necessary to maintain LOS "D" peak hour on the Courtney Campbell Causeway for project buildout. This is sufficient to notify Babcock that if its proposal, at full buildout, is not capable of meeting the LOS criterion, it must make changes either in its proposed development or in its proposals for mitigation. Whether Babcock chooses to meet these conditions by scaling down the size of its mixed use proposal; by developing its property with residential, as opposed to commercial, use; by proposing roadway improvements which can be funded and which will mitigate the adverse impacts; by delaying further development until additional roadway improvements are made; or in some other fashion is Babcock's decision and responsibility.
The record of this proceeding does not support a finding of arbitrary or discriminatory treatment by the City or the TBRPC with respect to the Babcock application for development approval. As repeatedly noted above, the critical significance and relationship of location to impacts renders each development wholly different, and one DRI cannot easily be compared to another. No similarity was shown between the Babcock DRI and the Westshore Areawide DRI, the latter of which is evaluated and reviewed under different statutory considerations. See Section 380.06(25), Florida Statutes. The only other DRI proposal located on Rocky Point Island received identical treatment as the Babcock proposal.
The concerns of the Environmental Land and Water Management Acts are regional impacts affecting the public in general, and a balancing of the interests of developers and local, regional and state governmental planners. Accordingly, the concerns of the New York Yankees and the Shriners over potential adverse impacts to access, visibility, aesthetics and the viability of
their business or charitable interests which may occur with the construction of a grade-separated interchange are not determinative of the ultimate issue of whether Babcock is entitled to approval of its DRI. Findings with regard to such private concerns are included herein to demonstrate both that the costs of Babcock's proposed mitigation may be affected thereby and that these intervenors have a substantial interest in the outcome of this proceeding so as to enable them to present evidence concerning those regional and local interests which Chapter 380 was designed to address.
In summary, DRI review is site specific. The location of Babcock's DRI is the critical factor preventing approval of the project proposed by Babcock. It was clearly established that the proposed development will unduly burden a major regional transportation facility, will create unacceptable levels of carbon monoxide emissions and will increase costs to the motoring public. Absent a showing that improvements to the roadway can be funded and implemented in such a manner that adequate levels of service are maintained, Babcock has failed to make adequate provision for the public facilities needed to accommodate the impacts of its proposed additional development. Having failed to establish that the adverse regional impacts of its proposed development can be cured or adequately mitigated, Babcock is not entitled to approval.
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission DENY Phase II of Babcock's application for development approval, and otherwise approve the Development Order entered by the City of Tampa.
Respectfully submitted and entered this 2nd day of February, 1989, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1989.
APPENDIX
The proposed findings of fact submitted by the Parties have been accepted and/or incorporated in this Recommended Order except as noted below:
Babcock
50. Rejected - contrary to the evidence.
59. Accepted as supported by some evidence, but not included as irrelevant to the issues in dispute.
64. Rejected as to grade-separated interchanges - not supported by competent substantial evidence.
66. Not totally accepted - unsupported by competent substantial evidence.
67 - 68. Accepted only if identical locations are assumed.
71. Second and third sentences rejected. See Finding of Fact 32.
75 - 76. Accepted as factually correct, but the materiality of other developments is - discussed in Conclusions of Law.
78 - 79. Partially rejected. It was determined that the issue of traffic impacts sufficiently embraces the issue of air pollution from carbon monoxide emissions.
Last sentence rejected - not supported by competent substantial evidence.
Rejected - irrelevant and immaterial to the issues in dispute.
85. First sentence rejected - not supported by competent substantial evidence and irrelevant.
89. Rejected - not supported by competent substantial evidence.
102. Rejected - not supported by competent substantial evidence. 104, 105 & 107. Rejected - not supported by competent substantial
evidence.
108. Second and third sentences rejected - not supported by competent substantial evidence.
109 - 110. Rejected - contrary to the greater weight of the evidence and not supported by competent substantial evidence.
112. Rejected - improper factual finding, contrary to the burden of proof in this proceeding and not supported by competent substantial evidence.
113 & 115. Rejected - not supported by competent substantial evidence.
116. Third sentence rejected - not supported by competent substantial evidence.
City of Tampa
26. All but first sentence rejected - irrelevant and immaterial to the issues in dispute.
29. Rejected as irrelevant and immaterial.
42. First part of first sentence rejected as overbroad.
53. The words "no weight" rejected and replaced with "deduced weight."
68. Degree of weight to be accorded rejected.
80. The words "any evidence" should be replaced with "competent substantial" evidence.
100. Last sentence rejected - speculative and not supported by competent substantial evidence.
TBRPC
39. Rejected - irrelevant and immaterial.
80. Rejected - irrelevant and immaterial.
107 & 110. The words "intentionally" rejected as not supported by competent substantial evidence.
New York Yankees
18. Last sentence rejected as unsupported by competent substantial evidence.
Third from last and last sentence rejected - not supported by competent substantial evidence.
Last sentence rejected - legal conclusions as opposed to factual finding.
25. Second sentence rejected as an overstatement. Shriners
19. Second sentence rejected as not supported by competent substantial evidence.
COPIES FURNISHED:
Eugene D. Sterns, Esquire David Smolker, Esquire Mark D. Solov, Esquire Sterns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A.
One Tampa City Center Suite 3300
Tampa, FL 33602
Douglas M. Wyckoff, Esquire de la Parte, Gilbert & Gramovot, P.A.
705 East Kennedy Blvd. Tampa, FL 33602
Linda M. Hallas, Esquire
Law Offices of Roger S. Tucker 9455 Koger Blvd., Suite 209 St. Petersburg, FL 33702
Jeffrey N. Steinsnyder, Esq. Office of General Counsel State of Florida, Department
of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
G. Steven Pfeiffer, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A.
101 North Monroe Street Suite 1040
Tallahassee, FL 32301
Jann Johnson, Esquire Ausley, McMullen, McGehee, Carothers & Proctor
227 South Calhoun Street Post Office Box 391 Tallahassee, FL 32302
The Honorable Bob Martinez Governor, State of Florida The Capitol
Tallahassee, Florida 32399
The Honorable Robert A. Butterworth Attorney General
State of Florida The Capitol
Tallahassee, Florida 32399-1050
The Honorable Doyle Conner Commissioner of Agriculture State of Florida
The Capitol
Tallahassee, Florida 32399-0810
The Honorable Betty Castor Commissioner of Education State of Florida
The Capitol
Tallahassee, Florida 32399-0250
The Honorable Jim Smith Secretary of State State of Florida
The Capitol
Tallahassee, Florida 32399-0250
The Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida
The Capitol
Tallahassee, Florida 32399-0300
The Honorable Gerald A. Lewis Comptroller
State of Florida The Capitol
Tallahassee, Florida 32399-0250
Patty Woodworth, Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol - PL-05
Tallahassee, Florida 32399-0001
| Issue Date | Proceedings |
|---|---|
| Feb. 02, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 02, 1989 | Recommended Order | Established that proposed development will unduly burden a regional transportation facility and petitioner failed to show that adverse impact can be mitigated |
