STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOWNTOWN PARK AVENUE NEIGHBORHOOD ) ASSOCIATION, INC., and DANA ) PLUMMER, )

)

Petitioners, )

)

vs. ) Case No. 97-5738

) CITY OF TALLAHASSEE; BARNETTE )

W. ALLEN; and SALLY P. ALLEN, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal administrative hearing was held in this case before the Division of Administrative Hearings, by Daniel M. Kilbride, Administrative Law Judge, on February 10, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioners: David A. Theriaque, Esquire

9 East Park Avenue Tallahassee, Florida 32301

For Respondents

Barnette and Sally Allen:

Charles A. Francis, Esquire Francis & Sweet, P.A.

Post Office Box 10551 Tallahassee, Florida 32302

For Respondent

City of Tallahassee:

Linda R. Hurst Assistant City Attorney City Hall

300 South Adams Street Second Floor

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Petitioners have standing to initiate formal proceedings under the City of Tallahassee Code of Ordinances.

Whether the Planning Commission has jurisdiction to consider a challenge to the City's vested rights determination.

Whether the Respondents Barnette W. Allen and Sally P. Allen's (Allens) proposed development, known as the Allenwoods Apartments project, is exempt from the consistency and concurrency requirements of the City of Tallahassee's (City) Comprehensive Plan.

PRELIMINARY STATEMENT

On October 24, 1996, the City Land Use Administrator issued a Land Use Compliance Certificate. In May 1997, the Allens submitted a Type B Site Plan application for the Allenwoods Apartments project, proposed to be constructed on approximately

1. acres, and consisting of 88 apartment units. The Development Review Committee (DRC) approved, with conditions, the Site Plan for the project on August 11, 1997. On August 26, 1997, the Association and Dana Plummer (Plummer) filed a Notice of Intent to File a Petition for Formal Proceedings of the DRC's approval of the Site Plan. On September 10, 1997, the Association and Plummer filed their Petition for Formal Administrative Proceedings. On September 16, 1997, the Allens

   filed an Objection to Standing of the Association and Plummer, and filed a Motion to Dismiss the Petition. On October 17, 1997, the Association and Plummer filed an Amended Petition for Formal Proceedings.

   On November 3, 1997, the Planning Commission determined that the Association and Plummer had standing to file the Amended Petition, and denied the Allens' Motion to Dismiss. On

   December 3, 1997, the appeal was forwarded to the Division of Administrative Hearings pursuant to City Ordinance. This administrative appeal was heard on February 10, 1998.

   At the hearing, the City called two witnesses: Wade Pitt and Gordon Hansen. The Allens called three witnesses: Barry Poole, Frank Langston, and Wade Pitt. The Petitioners called two witnesses: Dana Plummer and Neil Sipe.

   The City offered 11 exhibits in evidence and the Allens offered one exhibit. The Petitioners offered 11 exhibits in evidence.

   The transcript of the hearing was filed on March 9, 1998.

   
   

   Petitioners moved for an extension of time to file proposed orders. The motion was granted. The parties' proposed findings of fact and conclusions of law were timely filed on March 30, 1998. The parties' proposals have been given careful consideration in the preparation of this order.

   Based upon all of the evidence, the following findings of fact and conclusions of law have been determined:

   FINDINGS OF FACT

   
   

   Parties

   
   

   1. Petitioner Downtown Park Avenue Neighborhood Association (Neighborhood Association), Inc., is not-for-profit corporation organized on August 18, 1997, and existing under the laws of the State of Florida. The Neighborhood Association's principal office is located at 858 East Call Street, Tallahassee, Florida. The purpose of the Neighborhood Association is to preserve the residential nature and stability of the members' neighborhood.

   2. The members of the Neighborhood Association reside in close proximity to the property upon which the Allenwoods Apartments project is proposed to be constructed. Some members of the Neighborhood Association own property within 500 feet or less of the subject property.

   3. Petitioner Dana Plummer resides at 133-9 Oak Street, Tallahassee, Florida, which is in close proximity to the property upon which the Allenwoods Apartments project is proposed to be constructed. Mr. Plummer owns property less than 300 feet from the subject property. Plummer is the President of the Neighborhood Association.

   4. Respondent City of Tallahassee is a municipal corporation of the State of Florida. The City's DRC approved a Type B Site Plan application for the Allenwoods Apartments project.

   5. Respondents Allens are the owners of the property on

      which the proposed Allenwoods Apartments are to be located, and which property is designated as Blocks D and F in the Magnolia Heights Addition of the Hays Division.

      Allenwoods Apartments

      
      

   6. The Allenwoods Apartments is proposed to be constructed in approximately 8.64 acres, and is located on the north side of Call Street.

      
      

   7. The Allenwoods Apartments is proposed to consist of 88 apartment units. The apartments will be located within three three-story buildings and one two-story building, with a total of

      202 parking spaces.

      
      

   8. The density of the proposed Allenwoods Apartments project is approximately ten units per acre.

   9. On October 24, 1996, the Planning Department issued Land Use Compliance Certificate No. CC960429 which stated that:

      This site is eligible for development of 110 multi-family dwelling units developed at the RM-1 standards in Hays Subdivision, an exempt subdivision. Type B review required in proximity with existing low density residential uses.

      
      

   10. Notice of the Planning Department's decision to issue Land Use Compliance Certificate No. CC960429 was not provided to any members of the Neighborhood Association nor to Plummer.

   11. In May 1997, the Allens submitted a Type B Site Plan application for the Allenwoods Apartments project.

   12. In mid-June 1997, during the City's review of the

       proposed project, the City determined that the Allens' two lots qualified as lots located within a subdivision recorded as of July 16, 1990, and all infrastructure required for the development of the property was completed prior to that date.

       Accordingly, the City staff determined that, pursuant to Section 18-103(1)(a)(1) of the City's Vested Rights Review Ordinance, the proposed Allenwoods Apartments project did not have to comply with the concurrency and consistency requirements of the City's 2010 Comprehensive Plan. Consequently, the City staff did not review the Allenwoods Apartments project for consistency with the City's 2010 Comprehensive Plan, nor did the City review the project for concurrency.

   13. On August 11, 1997, the City's Development Review Committee approved the Type B Site Plan application for the Allenwoods Apartments project.

   14. Single-family residences are the primary use of the properties immediately adjacent to the Allens property.

   15. All existing multi-family units that have been constructed in the neighborhood were constructed prior to the adoption of the City's 2010 Comprehensive Plan.

       History of the Subject Property

       
       

   16. On May 1, 1910, J. L. Hays recorded a subdivision known as the Magnolia Heights Addition of the Hays Division. The plat for the Magnolia Heights Addition of the Hays Division is recorded at Deed Book "KK," page 600, of the Public Records of

       Leon County. The plat depicted a street running between Blocks F and G. The plat also depicted a street between Blocks D and F. These streets were never constructed.

   17. On January 15, 1946, H. H. Wells acquired certain Blocks of the Magnolia Heights Addition of the Hays Division, including all of Blocks D and F, and a portion of Block E.

   18. On March 11, 1946, H. H. Wells and Susye Bell Wells replated all of Block C and a portion of B, D, E, F, and G. The new subdivision was named "Magnolia Manor," and is recorded at Plat Book 3, page 6, of the Public records of Leon County.

   19. On January 6, 1948, H. H. Wells and Susye Bell Wells sold all of Blocks F and G, and Lots 9, 10, and 11 in Block D, of the Magnolia Heights Addition of the Hays Division to the Glover Construction Company.

   20. On July 22, 1948, the Glover Construction sold its portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Willie Mae Hampton.

   21. On November 1, 1963, Glover Construction Company sold a portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Harlem J. Allen, Clyde P. Allen, Barnette W. Allen, and Sally Procter Allen.

   22. On February 13, 1964, Willie Mae Hampton sold her portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Canal Timber Corporation.

   23. On December 2, 1964, Barnette W. Allen and Sally

       Procter Allen entered into an agreement to purchase that portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division owned by the Canal Timber Corporation.

   24. On November 20, 1972, Canal Timber Corporation sold its portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Grace H. Gibson.

   25. On December 26, 1974, Grace H. Gibson transferred her portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Barnette W. Allen and Sally Procter Allen.

   26. On December 15, 1976, Barnette W. Allen and Sally Procter Allen acquired whatever property interests that Harlem J. Allen and Clyde P. Allen possessed by virtue of the acquisition that occurred on November 1, 1963.

       
       

       The City's Vested Rights Review Ordinance

       
       

   27. The City adopted its 2010 Comprehensive Plan on July 16, 1990.

   28. Concurrently with the adoption of its 2010 Comprehensive Plan, the City adopted its Vested Rights Review Ordinance, Ordinance No. 90-O-0043AA. This ordinance was codified as Article VII of Chapter 18 of the Code of Ordinances.

   29. Article VII (Sections 18-101 through 18-106) of the Tallahassee Code of Ordinances establishes the standards by which a property owner may demonstrate that private property rights have vested against the provisions of the 2010 Comprehensive

       Plan.

       
       

   30. Section 18-101 of the Code is a statement of intent in regard to the Vested Rights Ordinance, which reads:

       This article establishes the sole administrative procedures and standards by which a property owner may demonstrate that private property rights have vested against the provisions of the 2010 Comprehensive Plan. Said administrative procedures shall provide determinations of consistency of development with the densities and intensities set forth in the 2010 Comprehensive Plan and that development is not subject to the concurrency requirements of the 2010 Comprehensive Plan.

   31. The City established three categories for which property owners could apply to establish their vested rights to continue development of their property without complying with the consistency and concurrency requirements of the 2010 Comprehensive Plan. These categories are contained in Sections 18-104(1) and (2), Code of Ordinances.

   32. The three categories were denominated as "common-law vesting," "statutory vesting," and developments of regional impact, which were approved pursuant to Chapter 380, Florida Statutes.

   33. Pursuant to Section 18-103(2), property owners who contended that they had vested rights pursuant to one of these three categories were required to request a determination of vested rights by filing an application with the Planning Department within 120 calendar days of July 16, 1990.

   34. The failure to timely file an application for a vested

       rights determination within the prescribed time limits constituted a waiver of any vested rights claims.

   35. The city's Vested Rights Review Ordinance also expressly states that a property owner cannot receive vested rights based upon a zoning classification.

   36. In addition to the three categories for which property owners could apply to establish vested property rights, the City's Vested Rights Review Ordinance included a provision by which certain property owners were presumptively vested and, therefore, were not required to file an application for a vested rights determination. Section 18-103(1) reads, as follows:

       1. The following categories shall be presumptively vested for the purposes of consistency with the 2010 Comprehensive Plan and concurrency as specified in the 2010 Comprehensive Plan and shall not be required to file an application to preserve their vested rights status:

          
          

          1. All lots within a subdivision recorded as of July 16, 1990, or lots in approved subdivisions for which streets, stormwater management facilities, utilities, and other infrastructure required for the development have been completed as of July 16, 1990. The Tallahassee-Leon County Planning Department shall maintain a listing of such exempt subdivisions.

             
             

          2. All active and valid building permits issued prior to July 17, 1990. All technically complete building permit applications received by the building inspection department on or before July 2, 1990, and subsequently issued, shall be vested under the provisions of the 2010 Comprehensive Plan, regardless of date of issuance.

          3. Any structure on which construction has been completed and a certificate of occupancy issued if a certificate of occupancy was required at time of permitting.

             
             

          4. All lots of record as of July 1, 1984, not located within a subdivision, but only to the extent of one (1) single-family residence per lot.

             
             

   37. If a property qualifies as an exempt or vested property pursuant to the City's Vested Rights Review Ordinance, the property owner does not have to comply with the consistency and concurrency provisions of the City's 2010 Comprehensive Plan. Such properties are allowed to be developed pursuant to the 1971 zoning code that was in effect until the City's 2010 Comprehensive Plan was adopted.

   38. The City staff and DRC determined that the subject property was vested because it fulfilled the requirements of Section 18-103(1)(a)(1) as a lot "within a subdivision recorded as of July 16, 1990." The basis for this determination was that the property was located within the plat for the Magnolia Heights Addition of the Hays Division which was recorded in 1910. The

       plat does not contain any statements as to use or density, however.

   39. The subdivision, known as Magnolia Manor, plated in 1946, has its own separate subdivision number, and consists of a portion of property that was originally part of the Magnolia Heights Addition to the Hays Division.

   40. A small portion of the Allens' property is located within the Magnolia Manor subdivision.

   41. Although from 1948 to 1974, Blocks D and F were both divided and transferred in a manner differently than that depicted on the 1910 Plat, all conveyances of the property subject to the Site Plan have been by reference to the lot and block of Magnolia Heights Addition.

   42. Subsequent purchasers of the property conveyed the lots subject to the Site Plan to the Allens, and described the lots as part of the original subdivision rather than by any reference to "Magnolia Manor."

   43. The replatting of certain lots within the subdivision to create "Magnolia Manor" did not affect or otherwise change any of the property subject to the Site Plan.

   44. On August 20, 1990, the City determined that the Magnolia Heights Addition was an exempt subdivision pursuant to the provisions of Section 18-103(1)(a)(1) of City Code of Ordinances, and was placed on the Planning Department list of exempt subdivisions. As such, the subdivision was exempt from

       the consistency and concurrency requirements of the Comprehensive Plan.

   45. The subdivision is one of more than 300-350 subdivisions determined to be exempt as recorded subdivisions. The exemption was based upon the fact the project was located in a subdivision recorded as of July 16, 1990, and all infrastructure required for the subdivision and for development of the property was in place and complete as of that date.

1. The City staff has been guided in its interpretation and application of the City's Vested Rights Review Ordinance by a memorandum dated August 27, 1990, written by then Assistant City Attorney John Systma. The August 27 memorandum states, in pertinent part, that:

   This memo is in response to your questions about the proper procedure to follow in determining if a subdivision recorded in 1906 should be declared exempt under the provisions of the Vested Rights Review Ordinance. The critical element that must exist for the subdivision to be exempt is that the current subdivision must be identical to the plat that was created when the subdivision was initially recorded. Any resubdivision, replatting or other changes made to the original recorded plat invalidates that plat. An excellent example of an invalid plat is the original plat recorded for the Pecan Endowment, which has subsequently been changed many times, thereby invalidating it.

2. The subdivision was recorded as of July 16, 1990.

   
   

3. The resubdivision of a part of an exempt recorded subdivision, which does not affect the property under review and

   subject to development approval, has never been the basis of denial of the recorded subdivision exemption provisions of the Vested Rights Ordinance.

   
   

4. City staff have never denied the exemption or vesting based upon a replatting of other lots in a subdivision which were not included in the proposed exempt development. Respondents clearly established that such replatting has not been a basis for denial of the exemption by City staff in applying the Vested Rights Ordinance since its adoption in 1990.

5. The development approvals for the Allenwoods Apartments are valid if it is determined that the project is exempt or vested under the Vested Rights Ordinance.

6. The property, at the time of adoption of the 2010 Comprehensive Plan, was zoned RM-1, and allowed development of a multifamily project at the density approved for the Allens.

7. The current zoning of the property is MR1 and would permit the development of the property as a multifamily project at the density approved for the Allens.

   CONCLUSIONS OF LAW

   
   

   Jurisdiction

   
   

8. Pursuant to City of Tallahassee Ordinance No. 97-O- 0052AA, the Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this cause.

   Standing

9. Pursuant to Article XXIV, Section 24.3(d), of the Tallahassee Code of Ordinances, as amended by City Ordinance No. 97-O-0052AA:

   Quasi-judicial proceedings may be initiated by the applicant, the local government with jurisdiction, or by persons who will suffer an adverse effect to an interest protected or furthered by the Comprehensive Plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or service, or environmental or natural resources. The alleged adverse effects to an interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all parties.

10. The Neighborhood Association and Plummer have alleged numerous violations of the City's 2010 Comprehensive Plan, which they contend have occurred as a result of the City's alleged incorrect vesting determination. These violations include environmental, traffic, density, and neighborhood consistency issues. These issues were not presented at the administrative hearing due to the parties' stipulation that, if the Allens' property is not vested from compliance with the concurrency and consistency requirements of the City's 2010 Comprehensive Plan, the appropriate remedy is to recommend that the Planning Commission set aside the Development Review Committee's August 11, 1997, approval and remand the application to the Development Review Committee for further processing pursuant to the concurrency and consistency requirements of the City's 2010

    Comprehensive Plan.

    
    

11. The Neighborhood Association and Plummer have demonstrated an interest greater than that of the general community. The Neighborhood Association consists of individuals who own property and/or reside in close proximity to the property on which the Allenwoods Apartments project is proposed to be constructed. Plummer resides and owns property within 300 feet of the subject property. The members of the Neighborhood Association and Plummer will be adversely affected by the development of an apartment project at a density greater than that allowed by the City's current land use regulations.

12. Residents of a neighborhood have standing to challenge proposed development that would be inconsistent with their neighborhood. As explained by the Third District Court of Appeal, "those who own property and live in a residential area have a legitimate and protectable interest in the preservation of the character of their neighborhood which may not be infringed by an unreasonable or arbitrary act of their government."

    Allapattah Community Ass'n, Inc. v. City of Miami, 379 So. 2d 387, 392 (Fla. 3rd DCA 1980). See e.g., Glisson v. Alachua County, 558 So. 2d 1030 (Fla. 1st DCA 1990), rev. denied, 570 So.

    2d 1304 (Fla. 1990).

    
    

13. Furthermore, it is well-established that an association, such as the Neighborhood Association, can have standing to represent its members. See e.g., Citizens Growth

    Management Coalition of West Palm Beach v. City of West Palm Beach, Inc., 450 So. 2d 204 (Fla. 1984); Florida Home Builders Ass'n v. Department of Labor and Employment Sec., 412 So. 2d 351 (Fla. 1982); Hillsborough County v. Florida Restaurant Ass'n, Inc., 603 So. 2d 587 (Fla. 2d DCA 1992). The fact that the Neighborhood Association was incorporated after the City's August 11, 1997, decision is irrelevant because the Neighborhood Association is litigating in a representative capacity on behalf of its members, several of whom, if not all, would have standing individually.

14. Accordingly, Plummer and the Neighborhood Association have standing to challenge the City's approval of the proposed Allenwoods Apartments project.

    Jurisdiction of the Planning Commission

    
    

15. The Allens contend that the Planning Commission is without jurisdiction to consider the challenge to the City's vested rights determination filed by the Neighborhood Association and Plummer. Although there is nothing in the Vested Rights Review Ordinance concerning the right of a party to appeal a decision as to vested status, the Respondents' argument is rejected.

16. As stated in the October 13, 1997, memorandum to the Planning Commission, the City Code provisions pertaining to an appeal of a DRC decision regarding the review of a Type B Site Plan provide the Planning Commission with jurisdiction to address

    a challenge to a vested rights determination. The memo states, in pertinent part:

    A decision of the DRC becomes final 15 working days after it is rendered unless a person who qualifies as a party files a notice of intent to file a petition for formal proceeding within that 15 days and files the petition for formal proceeding within thirty days after the decision is rendered. Sec. 21.4.G.8. and Sec. 24.3.C., City Code. Upon filing the petition for a formal proceeding, the Planning Commission conducts a de novo quasi-judicial proceeding, wherein the parties submit testimony and evidence in support of their positions and the Planning Commission evaluates the issues raised in the petition as if they were being reviewed for the first time. Sec. 24.3.C., Sec. 24.2.B., and Sec. 24.5.A., City Code.

    Under these provisions of the Code and under

    
    

    Sec. 21.8. of the Code, it appears that the Planning Commission could review the vested rights determination.

    
    

17. Section 21.8 of the Code, provides as follows:

    
    

    In deciding whether to approve, approve with conditions or deny a site plan, the entity with authority to render such decision shall determine:

    
    

    1. Whether the applicable zoning standings and requirements have been met.

       
       

    2. Whether the applicable criteria of the Environmental Management Ordinance have been met.

       
       

    3. Whether the requirements of other applicable regulations or ordinances which impose specific requirements on site plans and development have been met.

       
       

18. The determination regarding whether a project is exempt under the Vested Rights Review Ordinance falls within the scope

    of these three categories.

    
    

19. This conclusion is further supported by the fact that the City did not finalize its vested rights determination until June 17, 1997, while it was processing the Respondents' application for the Allenwoods Apartments project. Thus, the vested rights determination was part of the City's decision- making process in evaluating whether to approve or deny the Respondents' application for the Allenwoods Apartments project.

20. The Respondents contend that the challenge filed by the Neighborhood Association and Plummer should be dismissed because they failed to appeal the Planning Department's issuance of Land Use Compliance Certificate No. CC960429 within 15 days of

    October 24, 1996. This argument is rejected because it overlooks the fact that the October 24, 1996, decision was not a final decision on the issue of vesting.

21. The evidence established that, as late as June 1997, the City staff was still considering whether the Respondents' property was vested from compliance with the concurrency and consistency requirements of the City's 2010 Comprehensive Plan, and, if so, what development would be allowed on the property. A final decision regarding the exempt status was not made until

    June 17, 1997. The fact that these issues were still unresolved questions in June 1997 establishes that Land Use Compliance Certificate No. CC960429 did not constitute a final determination regarding the property's vested status.

22. Furthermore, it is undisputed that the Neighborhood Association and Plummer did not receive any notice of the Planning Department's issuance of the Land Use Compliance Certificate.

23. Even assuming that the Land Use Compliance Certificate constituted a final decision on the vesting question, the procedural due process rights of the Neighborhood Association and Plummer would be violated if a determination of which they were provided no notice and no clear point of entry was used to preclude them from challenging the City's vested rights determination. The attorneys for the Planning Commission correctly stated that:

    Although Chapter 120, Florida Statutes, which has its own statutory notice requirements, does not apply to this quasi-judicial proceeding, the Planning Commission may look by analogy to the requirements for sufficient notice in administrative proceedings at the state level. Under Chapter 120, any substantially affected person must be provided with notice that is sufficient to provide a "clear point of entry" to the formal or informal proceeding. Florida League of Cities, Inc. v. Administration Com'n, 586 So.2d 397, 413 (Fla. 1st DCA

    1991). Notice of agency action which does

    not inform the affected party of his right to request a hearing, and the time limits for doing so, is inadequate to provide a clear point of entry into the administrative process at the state level. City of St.

    Cloud v. Department of Environmental Regulation, 490 So.2d 1356, 1358 (Fla. 1st DCA 1986). As with local quasi-judicial proceedings, the sufficiency of notice under Chapter 120 is driven by due process concerns. See Summer v. DBPR, Bd. Of Psychological Examiners, 555 So.2d 919, 921

    (Fla. 1st DCA 1990) (due process was not violated where plaintiff was not provided with written notice but timely requested an administrative hearing).

    
    

    Presumptive Vesting

    
    

24. Section 18-103(1), Code of Ordinances, creates an exemption category which is separate and apart from the Vested Development Rights categories created by Section 18-104(1) of the Code. Therefore, Respondents Allens are not required to show that they qualify under any of the three categories set forth in Section 18-104. Under Section 18-103(1)(a), Respondents were not required to file an application to preserve their vested rights status.

25. The City's Vested Rights Review Ordinance does not address the effect of a re-subdivision except in Section 18- 104(3)(c), which states that re-subdivision does not affect the exempt or vested status of a subdivision. The ordinance has never been applied in a manner as to deprive a lot of an exemption or vesting as a result of the actions of others in the recorded subdivision as to the development of other lots. There is no evidence to support an application in that manner now. Therefore, an interpretation of the Ordinance contrary to this order is rejected.

26. Whether applying the presumptive vesting criteria in a manner that vests property owners who fail to fulfill any of the three vesting categories in Section 18-104 constitutes a violation of state law is not within the jurisdiction of this

    tribunal.

    
    

27. The subject property is located entirely within the Magnolia Heights Addition to Hays Division, which was a recorded subdivision as of July 16, 1990. All infrastructure required for the development of the property was completed prior to July 16, 1990. The fact that the infrastructure in place was not completed at the expense of the developer is irrelevant under the provisions of the Ordinance.

28. As such, the language of the ordinance is simple and direct; therefore, the property is exempt pursuant to the provisions of the City's Vested Rights Review Ordinance, Section 18-103(1)(a)(1), Code of Ordinances. The lots are vested as being a recorded subdivision and having all infrastructure in place for the subdivision and the development prior to July 16, 1990.

29. The decision of the City's DRC approving the Site Plan for the Allenwoods Apartment Project should be upheld by the Planning Commission.

law,

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

RECOMMENDED that the Planning Commission find that

Respondents Allens' lots are vested for the purposes of consistency and concurrency with the 2010 Comprehensive Plan, and, it is further

RECOMMENDED that the Planning Commission approve the Site Plan for the Allenwoods Apartment Project, as consistent with the requirements of Chapter 27, Article XXI, Section 21.4.G.8. of the Code of Ordinances.

DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998.

COPIES FURNISHED:

Charles A. Francis, Esquire Francis & Sweet, P.A.

Post Office Box 10551 Tallahassee, Florida 32302

David A. Theriaque, Esquire 909 East Park Avenue

Tallahassee, Florida 32301

Linda R. Hurst Assistant City Attorney City Hall

300 South Adams Street Second Floor

Tallahassee, Florida 32301

Mark Gumula

Director of Planning Tallahassee-Leon County

Planning Department

300 South Adams Street Tallahassee, Florida 32301

Jean Gregory

Clerk of the Planning Commission Tallahassee-Leon County Planning Department

300 South Adams Street, City Hall Tallahassee, Florida 32301

Robert B. Inzer

City Treasurer-Clerk

300 South Adams Street, City Hall Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 working days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the Clerk of the Planning Commission.

Docket for Case No: 97-005738

Orders for Case No: 97-005738